By Neale Gulley<br><a href="mailto:gulleyn@gnnewspaper.com">E-mail Neale</a>
A judge Wednesday ruled on several final motions by attorneys in the impending retrial of Robie Drake, who was convicted of double murder in North Tonawanda 28 years ago.
Drake, then a high school student, was convicted of shooting and stabbing two of his classmates as they sat in a car near Witmer Road across from Gratwick Park in 1981. Last year, however, a key prosecution witness in his original trial was ruled to have been a “quack” by the Second Circuit Court of Appeals.
Based on the malfeasance, Drake, now in his early 40s, would have been released if not granted a completely new trial. Jury selection for the complex case will begin Monday.
Once it does, however, little of the above context will be allowed for jurors to review. One side will argue the killings were intentional, the other that Drake didn’t do it on purpose.
“A trial is a snapshot in time ...,” state Supreme Court Judge Richard Kloch said at one point, as lawyers for both sides tediously argued over what from the first trial will and will not be admissible this time. The time passed means lawyers will rely heavily on transcripts of testimony nearly 30 years ago.
What will again take center stage is the question of whether or not Drake was aware Amy Smith, then 16, and Stephen Rosenthal, 18, were in the car when he shot at it. Former defense attorneys had argued the area was commonly used for target practice and Drake thought the car was abandoned and empty.
There will likely be less debate about Drake’s actions after the shootings. After shooting the two teens, he then allegedly stabbed them to death and tried to dispose of the bodies before being spotted by police.
Kloch said prospective jurors will be prohibited from reading or watching any local news coverage of the case. Lawyers’ opening statements will be prohibited from addressing the original trial. Though the passage of time will be obvious, Kloch will instruct jurors to consider only the evidence and testimony with which they are presented.
“Your duty is no different if the (allegations) happened 10 years ago, 10 minutes ago or 10 seconds ago,” the judge read from his planned juror address. The statements of witnesses, some of whom have since died, moved or are in poor health will be taken as though they were recently made.
But as evidenced by the conference Wednesday, it’s really much more complicated than that.
On the eve of the trial, Kloch ruled on motions including his decision to admit transcribed testimony related to tissue slides taken from Smith’s body, even though the slides were inexplicably lost by the Erie County lab long ago.
He sustained many of defense attorney Andrew LoTempio’s objections to certain lines in previous testimony by police following Drake’s arrest and doctors who commented on the condition of Smith’s body. Various doctors spoke regarding what was assumed to be bite marks and semen allegedly found on Smith’s body. The bite marks were said to have been inflicted after death. But LoTempio has called the qualifications of original prosecution experts and even the stringency of the science at the time into question.
In one case, after Smith’s body was exhumed in an attempt by the previous prosecution to prove she had been sexually violated by Drake, a doctor without the required specialty had been used to support that theory.
More testimony by Richard Walter, whose totally unfounded claim that Drake derived sexual gratification from the shooting forms the basis for the retrial, was recruited to prove motive by then-District Attorney Peter Broderick.
Walter, whose testimony the Second Circuit Court of Appeals later said amounts to “quackery,” was used to establish a sexual motive by prosecutors. Then, through the efforts of Drake from prison, the court eventually found Walter was merely a lab janitor in California and not a scientist at all.
LoTempio argued he can’t cross-examine some of the original witnesses, because they are dead or incapacitated.
He told Kloch the level of scientific knowledge and qualifications for expert witnesses has also changed over the years and he will be forced to bring current specialists to the stand to rebut the credibility of the original experts.
Assistant District Attorney Tomas Brandt, the prosecution, asked the judge to compel new testimony by police officer Roger Andrews, who is in poor health. His condition has thus far prevented him from committing to take the stand. He has a doctor’s letter saying that he is not fit to testify again.
Kloch denied the request. For now, only the transcript of the officer’s original testimony will be admitted.
However, it is possible Andrews’ fitness will be further reviewed and it is possible he could be subpoenaed. Kloch at one point expressed a willingness to bring waiting medical staff into the courtroom in the event Andrews became physically overwhelmed.
Another officer Michael A. De-Mart, had already cited a severe heart condition as grounds for not testifying. De-Mart, however, has since decided he will take the stand.
Brandt indicated a night time field trip to the crime scene may be in store because it could address questions of lighting. Kloch said it will be imperative that the prosecution make a strong case that the area is similar to the way it was when the crimes occurred, which Brandt agreed he would do.
“I couldn’t tell you if it’s the same or not,” LoTempio said. “I was 17 years old, it’s likely to be vastly different.”
Also, a request by Brandt to have the original trial’s stenographer read responses from transcripts as lawyers for both sides read the questions was the subject of objection by LoTempio. He said the stenographer’s inflection and other intonations could present problems.
Contact reporter Neale Gulley at 693-1000, ext. 114.
