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LOCKPORT – Preparing to try a 32-year-old homicide case for the third time is no easy matter, as a session in State Supreme Court demonstrated last week.

Justice Richard C. Kloch Sr. and the attorneys in the Robie J. Drake case met to try to hash out whether the Niagara County Public Defender’s Office must step aside as Drake’s counsel.

Drake, 48, has been convicted twice of two counts of second-degree murder in the Dec. 5, 1981, shooting deaths of two of his fellow North Tonawanda High School students.

There is no question whether Drake shot Steven Rosenthal, 18, and Amy L. Smith, 16; he admitted doing so during testimony in his second trial in 2010, although he asserted he didn’t know at first that there was anyone in the rusty 1969 Chevrolet Nova he riddled with rifle fire on a dark night in a factory parking lot. But both of Drake’s convictions have been thrown out on appeal.

His original trial in 1982 was tainted by the use of a bogus expert witness who committed perjury with the prosecution’s knowledge, the U.S. Second Circuit Court of Appeals ruled in 2009.

A retrial in 2010 resulted in the same verdict, but the Appellate Division of State Supreme Court set the conviction aside because Kloch allowed the prosecution to introduce evidence that purportedly showed Smith’s body was sexually abused after her death. The appeals court found that both prejudicial and irrelevant.

If Drake is again convicted of murder in a third trial, he would continue to face the possibility of spending the rest of his life in prison. A manslaughter verdict – nonintentional killing – would assure him of eventual release at the end of a fixed sentence.

But first, the question of whether the Public Defender’s Office has a conflict of interest needs to be resolved. Drake had private attorneys for his first two trials.

Some 20 years after the killings, two prosecution witnesses, Eugene Konieczny and Edward A. Cusatis, were charged with crimes of their own, in which they were represented by public defenders. Kloch said if he doesn’t address the apparent conflict, “Am I not just inviting a mistrial in a third trial for Mr. Drake?”

“If you take us off the case, you’re creating an appellate issue,” Assistant Public Defender Christopher A. Privateer responded.

Privateer, assigned to the case with colleague Joseph G. Frazier, contended that Konieczny’s testimony in 2010 helped Drake. Konieczny said that he saw Drake leave home carrying two rifles on the night of the slayings.

“You don’t think that’s a problem?” Kloch asked.

“No, because there’s no dispute,” Privateer answered.

Cusatis, a county jail inmate in 1982, testified at Drake’s first trial that Drake admitted to him that he shot the victims. He was not called to the stand in 2010.

Kloch said the conflict issue could be sidestepped if Drake would agree to simply have the witnesses’ past testimony read to the new jury. Attorney Joseph M. LaTona, representing Konieczny, said another way out would be for the prosecution and defense to agree to a stipulation containing the facts those witnesses would offer if they took the stand.

email: tprohaska@buffnews.com