Tonawanda News

November 9, 2013

Robie Drake trial set for March

By Michael Regan
The Tonawanda News

Tonawanda News — A third trial has been set for March 10 for a man who has already spent more than 30 years in prison for killing two of his fellow North Tonawanda High School classmates in 1981 in a parked car on River Road. 

For months, attorneys have argued before Niagara County Judge Richard C. Kloch over the representation of Robie Drake, who has sought to keep his public defenders despite that fact that the office also is representing a witness in an unrelated criminal matter, constituting a potential conflict. 

Drake was convicted in 1982 of murder and sentenced to 40 years to life in prison, but a purported expert witness who turned out to be a janitor led to a 2010 retrial, when Kloch, who oversaw the trial, lengthened Drake’s sentence. Evidence used in the second trial was deemed last year by an appellate court to be outside the boundaries of Drake’s charges and thus, required another retrial. 

The recent debate over who would represent Drake has been mainly centered on whether a witness who testified in the early 1980s would be able to do so again and also raised the question of conflict due to the Public Defenders Office’s involvements representing the witness. 

In September, Drake stood firm on his desire to keep assistant public defenders Christopher Privateer and Joseph Frazier as his council because of a level of familiarity established during the 2010 retrial. 

Kloch ruled this week that following a waiver by Drake, he will allow him to use the two attorneys to represent him. Assistant District Attorney Thomas Brandt said he did not object to Kloch’s ruling. 

“What we wanted was for everyone to be made aware of the potential conflict,” he said. “The judge has done that.” 

Kloch oversight of a third trial was called into question earlier this year by the defense team because the judge added 10 years to Drake’s 40-years-to-life sentence in 2010, though Kloch refused to recuse himself. 

Drake, who has never denied shooting Amy Smith, 16, and Steven Rosenthal, 18, but said it was an accident is attempting to reduce his murder charges to manslaughter. If a jury agrees, Drake, who was 17 when the shootings took place, could be released from prison. 

A pretrial hearing is expected in January. 

Contact reporter Michael Regan at 693-1000, ext. 4115.