LOCKPORT — Niagara County is in the process of filing an appeal to halt a third murder trial for Robie Drake, who has twice been convicted for the gruesome 1981 killings of two North Tonawanda teenagers.
Assistant District Attorney Thomas Brandt has filed necessary paperwork with the state Court of Appeals, after a lower court ruled in April that evidence submitted during Drake’s second trial in 2010 was inadmissible.
That evidence was largely in relation to a bite mark reportedly found on one victim’s breast.
“I’m not going to say that’s the only thing they’re referring to but that’s the primary thing,” Brandt said of the bite mark, suggesting that other sexual improprieties Drake has been accused of may also have come into play in the court’s ruling, despite the fact he was never charged for them.
Drake was found guilty of a late-night shooting Amy Smith, 16, and Steven Rosenthal, 18, while they were parked in an older model vehicle in a dimly lit area of the city off River Road.
Drake’s defense team, public defenders Christopher Privateer and Joseph Frazier, said they are confident the trial will move forward, which could lead to a reduction in Drake’s sentence of two 25-years-to-life terms, as imposed by Justice Richard Kloch following the second trial.
Brandt said the DA’s office filed paperwork with the court in mid-May contesting the decision to grant Drake yet another trial, which also includes other sexual improprieties allegedly conducted by Drake.
“What they say is that the evidence was in dispute and even if it wasn’t in dispute, the probative value did not outweigh the prejudice because of the type of activity involved,” Brandt said of the appellate court’s April 27 ruling.
If Brandt’s bid is successful, all parties involved will go before a full court of appeals. As it stands, only one judge is currently looking at the prosecutors’ applications for leave.
Should Brandt’s requests be denied, a third trial would take place as soon as Oct. 15, though Kloch, who is again overseeing the case, said he would leave a wide birth for both sides to prepare for the possible trial.
Drake’s defense team would likely push for a reduction in his sentence from a double homicide to manslaughter, in which case he could be released after more than 30 years in prison.
“There’s a lot of thing’s that could happen,” Brandt said. “If the higher court simply turns us down we’re back in front of Judge Kloch.”
Contact Reporter Michael Regan at 693-1000, ext. 4115.
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