Defense attorney Andrew C. LoTempio said Wednesday that he might ask a judge to order Niagara County to pay as much as $500,000 for his expert witnesses in the retrial of Robie J. Drake, convicted of killing two North Tonawanda teenagers 28 years ago.
LoTempio said he will make that request if prosecutors insist on introducing medical evidence on what allegedly happened to the body of Amy Smith after the 16-year-old girl was shot to death Dec. 5, 1981.
LoTempio disclosed the price tag in an interview after presenting a motion to have the medical evidence thrown out as irrelevant to the question of what Drake was thinking before he shot Smith and Steven Rosenthal, 18.
Prosecutors did not back down. "We intend to introduce all the medical evidence," Niagara County Assistant District Attorney Thomas H. Brandt said.
Drake, now 44, was convicted of two counts of intentional murder in an October 1982 trial and was sentenced to life in prison.
But in January, the U.S. Circuit Court of Appeals in New York City ordered a new trial on grounds of prosecutorial misconduct.
Then-Niagara County District Attorney Peter L. Broderick Sr. presented experts to assert that Drake was driven to kill by a purported psychological syndrome called "picquerism," in which a person derives sexual satisfaction from a shooting or stabbing.
The federal court found that picquerism is "quackery" and that Broderick's star witness inflated his resume and committed perjury with Broderick's knowledge.
As the attorneys contest the evidence, Drake's trial, set for Oct. 5, was postponed until at least Nov. 23, with the possibility of further delay.
Drake, who was 17 at the time, has never denied that he shot Smith and Rosenthal as they kissed in a rusty 1969 Chevrolet Nova parked in an abandoned factory's parking lot off River Road in North Tonawanda.
He told police that he thought the car was empty and was using it for rifle practice. Smith was shot twice and Rosenthal 16 times.
Drake drove the Nova to a nearby landfill, where two policemen caught him trying to stuff Smith's nude body into the trunk.
The results of two autopsies turned up evidence of a bite mark on the girl's chest, which examiners said was inflicted after her death, along with other violations of her corpse.
"That becomes irrelevant now. He's not charged with doing anything to those people after they were dead," LoTempio argued.
He said the only purpose of the medical evidence was to bolster Broderick's claim of picquerism. But if the medical evidence comes in, LoTempio said, he would have to fight it by hiring a proctologist, a pathologist and experts in DNA, bite marks and ballistics.
Although LoTempio was hired by Drake's brother, the attorney said that the brother is out of money and that he is working for a reduced fee. He wants to invoke a provision of state law under which a judge can order a county to pay for expert witnesses for defendants in such financial straits.
Meanwhile, Brandt and Assistant District Attorney Timothy R. Lundquist are asking to have some testimony from the 1982 trial simply read to the new jury.
Some witnesses have died, including one of the two arresting officers and the doctor who performed the first autopsy. But the prosecutors say others are too old or live too far away to testify again.
LoTempio said he would insist on live testimony whenever possible. County Judge Sara Sheldon Sperrazza set arguments on all motions for Oct. 15.
Sperrazza was filling in for State Supreme Court Justice Richard C. Kloch Sr., who is hospitalized with complications after knee surgery. Sperrazza said she was optimistic that Kloch would be available to hear arguments on the motion.