Tonawanda News

June 21, 2013

Drake denied new judge

By Jessica Bagley jessica.bagley@tonawanda-news.com
The Tonawanda News

Tonawanda News — LOCKPORT —  More than 31 years after the killings in North Tonawanda, Robie Drake was back in Niagara County Court Thursday in preparation for his third homicide trial and his second court case before State Supreme Court Judge Richard Kloch. 

Drake, now 48, was 17 when he killed his peers Steven Rosenthal, 18, and Amy Smith, 16, in a parked car off River Road in 1981. Two of his previous guilty convictions have been tossed out, and now Drake awaits his third opportunity to convince a jury that although he killed the victims, he didn’t do so intentionally. 

The trial’s start is likely months away, but it inched closer Thursday afternoon when Kloch delivered his decisions on several pretrial motions. Most notably, Kloch denied a public defenders’ vehement request that he recuse himself from the case. 

The defense lawyers made many varied objections to Kloch presiding over the trial, including negative statements the judge made about Drake’s behavior at his last sentencing in 2010 and Kloch’s role as North Tonawanda city attorney when the killings took place in 1981. 

“Never did the police consult with me about Mr. Drake’s case,” Kloch said. “Never did they consult with me about any case.”

Assistant Public Defender Christopher Privateer also took issue with Kloch’s law clerk, Ron Winter, who previously served as an assistant district attorney for a period of time between Drake’s first and second trial. Although Kloch denied that Winter was involved in the case, he said he would not discuss the case with his clerk “in an exercise of extreme caution.” 

Privateer also brought up an alleged conversation Kloch had with one of the victims’ family members. He demanded an inquiry into what had been said, but Kloch said he didn’t remember the talk taking place, and said if it had, the discussion wouldn’t have been inconsequential. 

“You are presumed innocent,” Kloch said to Drake after delivering his decision. “I will give you a fair trial ... I know I can handle it fairly, so I deny the motion for recusal.” 

Kloch also responded to Assistant District Attorney Thomas Brandt’s argument that the public defender’s office should be taken off the case due to a conflict of interest, as two prosecution witnesses have previously been defended by public defenders. 

In response to those concerns, Kloch appointed two Erie County attorneys to handle pre-trial proceedings with the two witnesses, who will be brought into court before opening arguments to discuss waiving their attorney-client privilege.

Kloch then asked Drake if he would prefer to have another attorney to represent him in regard to any conflict of interest that may arise. 

“We have discussed it briefly, and I want to keep them (the public defenders) on, but, in order to protect my rights, we have agreed I should have counsel,” Drake said. 

Although it was the only time Drake spoke openly in court, he conferred with Privateer frequently throughout the proceeding and often sighed in response to Brandt’s arguments and Kloch’s rulings. 

Drake, who has been in prison for all of his adult life, has admitted that he used a rifle to shoot at a vehicle 19 times as the victims sat in a parked car at a notorious lover’s lane. Drake maintains he thought the car they were in was abandoned.

Drake then stabbed Rosenthal, who was still clinging to life, and stuffed their bodies in the trunk of his car. A North Tonawanda patrolman caught him a short time later trying to dispose of the bodies. Explaining his actions during the previous two trials, Drake said he panicked when he realized what he’d done.

He was initially found guilty in 1982. But that verdict was tossed out nearly two decades later after it came to light that a prosecution witness had lied about his credentials as a criminal psychologist — the man was actually a janitor at a San Francisco crime lab — and invented a psychological disorder he ascribed to Drake that offered a motive for the killings.  

A second trial took place in 2010, and a jury again found Drake guilty, and Kloch sentenced him to 50 years to life — a longer term than originally levied. Kloch, in extending Drake’s sentence, cited new forensic evidence brought forth by prosecutors that showed Drake’s proximity to the vehicle would have made it impossible not to see Smith and Rosenthal inside.

But a Rochester appellate court ordered a third trial due to the prosecution’s evidence regarding a bite mark on Smith’s breast that was allegedly inflicted after her death.

The appellate court ruled that the evidence was prejudicial, as Drake was never charged with any sex crime. His defense team maintains the forensic science used at the time to identify the bite mark is outdated and shouldn’t have been presented in the first retrial.

Contact reporter Jessica Bagley at 693-1000 ext. 4150, or follow her on Twitter at @JessicaLBagley