Delay sought in retrial of ’81 double homicide
LOCKPORT — As attorneys in the Robie J. Drake murder case sought another postponement of the retrial, they continued to wrangle Monday over which of the surviving witnesses must testify in person.
Some witnesses have died since the Dec. 5, 1981, homicides of two North Tonawanda High School students, for which Drake was convicted the following year. If their testimony is admissible in Drake’s retrial, it will be read aloud from the 1982 trial transcript.
Drake was granted a new trial in January by a federal appeals court that found prosecutorial misconduct and perjury by a purported expert witness in the first trial.
Drake, now 44, was sentenced to a maximum of life in prison after being found guilty of two counts of second-degree murder in the rifle slayings of Steven Rosenthal, 18, and Amy Smith, 16, as they sat in a car next to an abandoned River Road factory.
Lawyers in the case would like to have more time to prepare for trial. State Supreme Court Justice Richard S. Kloch Sr. has scheduled jury selection to begin Nov. 23, and with the Thanksgiving holiday coming that week, testimony isn’t expected to start until Nov. 30.
The problem is that the U. S. Second Circuit Court of Appeals, which ordered a new trial for Drake, set a Dec. 4 deadline for it to occur and only that court can authorize a postponement.
Defense attorney Andrew C. LoTempio said Drake’s brother hired Buffalo’s Phillips Lytle law firm to make that request last week. Assistant District Attorney Thomas H. Brandt said, “We do not oppose that.”
But LoTempio does oppose the prosecution’s plan to reread more 1982 testimony than he thinks is necessary. “Everybody who saw the bodies is said to be unavailable,” he complained.
But other witnesses who are still alive continued to be at issue Monday as Drake and the lawyers appeared before Kloch. Prosecutors are seeking to exempt some of them from having to testify in person.
One witness, former Erie County Assistant Medical Examiner Dr. Katherine Lloyd, now lives in Ireland and has refused to travel here, even though Niagara County would pay for it. Brandt said, “We have no way to compel her.”
Kloch told Brandt, who had been using e-mail to communicate with Lloyd, to call her on the phone. “Impress on her we need her back here. Be persuasive,” the judge said.
Another witness, Dr. Bich Nguyen, who lives in California, is pleading health problems, as is a retired North Tonawanda policeman, Michael DeMart. They can be subpoenaed, if Kloch will allow it.
Brandt said Nguyen, who examined the bodies of the victims in Niagara Falls Memorial Medical Center, has had a stroke and would need help getting around. But LoTempio cited a Web site that lists her as actively practicing medicine in California.
DeMart has heart problems, but Kloch ordered Brandt to produce him to testify at a hearing next Monday. “I believe he’s younger than me,” said Kloch, 58.
LoTempio wants to cross-examine the witnesses in person. Kloch said William R. Lewis, Drake’s 1982 lawyer, now a North Tonawanda city judge, did that job 27 years ago “professionally and robustly.”
LoTempio said Lewis “did a great job. But it’s now 2009. Medicine is very different now. . . . My cross-examination would be different from Mr. Lewis’, as Mr. Lewis’ [cross-examination] would be today.”
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