Lockport — Prosecutors in the retrial of Robie Drake finished presenting evidence and testimony Tuesday regarding the shooting deaths of two North Tonawanda teens in 1981.

The jury heard from the latest in a string of medical witnesses testify on conflicting accounts of whether bite marks, semen and other supposed evidence of post mortem sexual abuse by Drake were found on the body of Amy Smith, then 16.

Various medical opinions old and new have been logged in the case suggesting the evidence was found following the exhumation of Smith’s body approximately a year after the shootings of Smith and Steven Rosenthal.

An appeals court granted the new trial last year after a key medical witness in the original trial 28 years ago was found to have submitted false testimony. The court ruled Richard Walter, a California laboratory janitor who purported to be a scientist, assigned a phony sexual/psychological motive to Drake, then 17.

Walter’s role, however, is unrelated to fresh arguments regarding whether physical/sexual evidence can be linked to the defendant more than 28 years after he was first jailed on two counts of second-degree murder. 

Tuesday’s action included re-reading testimony by Justin Uku who in 1981 was Erie County Medical Examiner. Uku, now deceased, had concluded marks on Smith’s breasts were bite marks inflicted after her death. He said in 1981 that more bruising would have been encountered if they were created while she was alive.

However, several tissue slides containing samples from Smith’s body have disappeared from the Erie County lab and Drake’s defense attorney, Andrew LoTempio, took numerous shots at the credibility of the earliest medical testimony. He has more than once addressed the inability to cross examine those who initially studied the slides for that reason. Further, despite the medical opinions weighing in the case, he said sperm cells allegedly found, as well as the bite marks, were never directly linked to Drake.

Drake was convicted in 1982 and had already confessed to the shootings of Smith and her boyfriend Rosenthal, which he maintains were accidentally caused when he fired his .22-caliber rifle into what he thought was an abandoned car late at night. The crime scene, LoTempio has argued, was an unlighted dump site off River Road near Walck Road that was commonly used for target practice. Prosecutors have instead illustrated their belief that Drake had a beef with Rosenthal and seized an opportunity to take both lives.

The defense’s position all along has been that the two apparent lovers were less than conspicuous on the night of Dec. 5, 1981, and that Drake, in a panic attempted to dispose of the bodies just before he was caught by officers on routine police patrol.

Testimony has already been heard by patrolmen who came upon the scene Dec. 5, at which time their testimony states they thought Drake was loading a deer carcass into the back of Rosenthal’s 1969 Chevy Nova. It was, they quickly discovered, Smith’s half-naked body.

Following Tuesday’s dense medical testimony on three waves of test results on Smith’s body, a conference between LoTempio, prosecutor Thomas Brandt and Judge Richard Kloch was held without the jury. Disagreement seemed to surface over the subsequent stabbing of Rosenthal by Drake and its role in the wording of the existing charges, murder by shooting.

LoTempio told Kloch he intends to have the charges reduced to second-degree manslaughter and criminally negligent homicide as a result of the new trial, which has centered on the question of intent and the results of the post-burial examination of Smith. Brandt said he and Assistant District Attorney Peter Wydysh are seeking to add “consciousness of guilt” to Drake’s sentence.

LoTempio, taking the opportunity following the conclusion of prosecutors’ witnesses, asked the judge to dismiss the case, asserting intent has not been established in the trial that began last Monday.

LoTempio will call additional witnesses today and Thursday. Closing arguments and jury deliberation could take place as early as next Monday.