An appeals court judge has granted at least the second major extension in the double murder retrial of Robie Drake, pushing off the potential date for at least another two months.
The decision to hold off as witnesses are rounded up was agreed to by both prosecutors and the defense, State Supreme Court Judge Richard Kloch said. Under the terms of the extension, the trial must be scheduled sometime between now and June 4, 2010. Kloch, however, said he imagines it could take place in February or March.
An appeal by Drake orchestrated from prison was successful in compelling the Second Circuit Court of Appeals to order the retrial almost a year ago in January. Drake 44, was convicted in 1982 of two counts of second-degree murder for the 1981 shooting of North Tonawanda High School classmates Steven Rosenthal, 18, and Amy Smith, 16, as they sat in a parked Chevy Nova near a landfill on River Road near Witmer Road. The ordeal rocked the community and many residents can still recall their shock.
The retrial was last slated to begin Nov. 23, already months after the original ruling had insisted he be granted a new trial within 90 days. The ruling came after an expert’s testimony explaining the prosecution’s alleged motive for the killings was found to be based on suspect science and largely fabricated. A California laboratory janitor was given the stand by prosecutors, where he lied about his credentials and assigned a false psychological motive to the crime.
Drake admitted shooting Smith and Rosenthal but told police he thought the car was abandoned and he was using it for target practice. He was arrested after patrolmen saw him loading Smith’s body into the trunk of the same car at the landfill.
Now, almost 28 years later, new problems exist. Several key witnesses are either dead or suffering from physical ailments and have refused to take the stand.
Kloch is currently deciding how to make use of transcripts of old testimony versus convincing some of the same witnesses to testify anew.
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