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New trial scheduled in killing of two after court rules testimony was phony

Robie J. Drake was a 17-year-old high school senior with long, bushy hair and a cold gaze when he was charged with killing two fellow students in late 1981.

He was back in court Friday, more than 27 years later, because of a phony expert witness who perjured himself during Drake's first trial after a medical examiner's mistake.

He will get a second chance to plead his case in a new trial scheduled for March 23 in State Supreme Court. The U.S. Second Circuit Court of Appeals last month ordered one based on the faulty testimony.

Drake, now 44, has shorter, graying hair, a mustache and a beard. He had been serving two consecutive terms of 25 years to life since his double-murder conviction and was transferred from Sing Sing Correctional Facility to the Niagara County Jail after the federal court ruling was issued.

"This is the first time in my 30 years of experience that I've seen a decision like this," one of Drake's two defense lawyers, David J. Farrugia, said after the hearing before Justice Richard C. Kloch Sr.

Kloch also will preside over the trial.

Drake was convicted of shooting to death two fellow students, Amy Smith, 16, and Stephen Rosenthal, 18, who apparently were kissing in a car that was parked in a factory lot next to a junk yard on the night of Dec. 5, 1981.

Drake was arrested by two North Tonawanda patrolmen while he was stuffing the girl's body in the trunk of the car, which he had driven to a nearby county landfill on Witmer Road in Wheatfield.

He admitted firing rifle shots into the parked car, Rosenthal's rusty 1969 Chevrolet Nova, but said he thought it was empty and he was using it for target practice.

Smith had been shot twice in the head, and Rosenthal was shot 16 times, a Buffalo Evening News story reported at the time. Drake also confessed to stabbing Rosenthal twice as he lay dying.

Friday, Drake -- expressionless as sheriff's deputies led him from an elevator into Kloch's courtroom -- was handcuffed and wore an orange jumpsuit with N.C. Jail stenciled on the back. He did not respond to questions from reporters.

There were no members of his family at the hearing.

Drake stood before Kloch as the judge went over details of the new trial with the attorneys, Farrugia and Christopher A. Privateer for the defense, and prosecutors Timothy R. Lundquist and Thomas H. Brandt. Drake whispered instructions to his lawyers several times during the 15-minute court appearance.

Farrugia said after the hearing that new scientific evidence, if found, may be introduced at the retrial.

Lundquist, an assistant district attorney, said he and Brandt will look at the whole case and see if there's a possibility of gathering new forensic evidence.

"At this point we're preparing our case, and we will do what we have to do to get ready," he said, although he wouldn't comment on trial strategy.

Unlikely to be reintroduced is the testimony of Richard D. Walter, an "expert" witness who was deemed a fraud by the federal appeals court that reopened the case.

The testimony by Walter, who was first described as a Michigan prison psychologist, said that bite marks on the dead girl indicated what he called "picquerism," a syndrome that gives a perpetrator sexual gratification. The appeals court said Walter's testimony -- which the court said amounted to "quackery" -- was key to the jury's convicting Drake.

Thomas J. Prohaska of the News Niagara Bureau contributed to this report.

e-mail: bmichelmore@buffnews.com

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