Forensic technology not available when Robie J. Drake was convicted of murder 27 years ago will be applied to his retrial next month.
State Supreme Court Justice Richard C. Kloch Sr. granted a prosecution request Friday to have Drake give a DNA sample for comparison with old evidence from the Dec. 5, 1981, death scene.
DNA testing was not available in 1982, when Drake, now 44, was found guilty of two counts of second-degree murder in the rifle slayings of two fellow North Tonawanda High School students, Stephen Rosenthal and Amy Smith.
Rosenthal was shot 16 times and Smith twice as they sat in a parked car. Rosenthal also was stabbed, something Drake admitted doing in a statement to police. He told officers he shot at the car for target practice, thinking it was empty.
Drake, then 17, was arrested when two police officers caught him trying to stuff Smith's nude body into the trunk of the car. An autopsy also found bite marks on her chest, which the examiners concluded were inflicted after her death.
Last month, the U.S. 2nd Circuit Court of Appeals ordered a new trial for Drake, on the grounds that the prosecution used an expert witness who lied on the stand in the 1982 trial.
The court ruled that Richard D. Walter, whose role was to explain a psychological motive for the killings, presented a syndrome called "picquerism," which the court ruled was "quackery," and also grossly inflated his resume.
For example, Walter, a prison psychologist in Michigan, said he worked on as many as 7,500 cases in the Los Angeles County coroner's office, when his actual job there was to clean up the laboratory.
The retrial is scheduled for March 23, but Niagara County Public Defender David J. Farrugia continued to insist Friday that it would be "impossible" to meet that schedule, as the defense needs to run its own forensic tests on some of the evidence.
A federal court's permission would be needed to obtain a postponement. The appeals court's order said Drake had to be retried within 90 days from its Jan. 23 decision or he would have to be released from jail.