Niagara Gazette

September 6, 2013

Sides prepare for third trial related to 1981 North Tonawanda killing

By Michael Regan
Niagara Gazette

Niagara Gazette — LOCKPORT — Pretrial proceedings ensued on Thursday in Niagara County Court in preparation for the third trial of Robie Drake, who has already served more than three decades in prison for killing two of his fellow North Tonawanda High School classmates in 1981. 

On Thursday, prosecutors and the defense sparred over how to admit the testimony of two witness, both of whom had testified in previous trials during which they were utilized to establish the time and place  that Amy Smith, 16, and Steven Rosenthal, 18, were killed along River Road. 

Drake, who was 17 at the time, admitted to shooting the two of them multiple times, but said it was by mistake — a claim that thus far has not convinced two separate juries. 

But as both sides prepare for a third trial expected to begin later this year, the prosecution argued that the witnesses should be permitted to testify in court, while the defense is standing firm on its contention that the previous statements made by both witnesses during past trials should in themselves be enough to remain admissible. 

To further complicate matters, one of the witnesses had previously sought council from public defenders Christopher Privateer and Joseph Frazier for unrelated legal issues. Both attorneys are now representing Robie Drake. Privateer said the history could lead to a potential conflict of interest. 

Judge Richard C. Kloch seemed keen on Thursday to back the stance of the prosecution, though a final determination regarding the witnesses will not be concluded until Sept. 24, when another pretrial hearing is scheduled. 

Kloch’s oversight of the trial was called into question by the defense earlier this year. The judge in 2010 tacked on 10 years to Drake’s 40-year-to-life sentence for second-degree murder, but refused to recuse himself for what will become Drake’s third trial. 

The first two trials decisions were overturned by an appellate courts, first because a so-called expert witness from California who had been a key factor in establishing the prosecution’s stance that Drake had sexual violated Smith after her death. That witness was later discovered to be a janitor. 

The second trial, in front of Kloch, has wrongly permitted the use of an alleged bit mark found on one of the victims, which a appellate court deemed as inadmissible. 

Drake has never denied that he shot the high school students, who were reported to be kissing in a dimly lit parking lot in North Tonawanda.