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Jury gets Drake murder case
Note indicates group is apparently divided

Robie J. Drake spent his 20th wedding anniversary Monday waiting for a verdict on whether he intentionally killed two of his fellow North Tonawanda High School students Dec. 5, 1981.

State Supreme Court Justice Richard C. Kloch Sr. sent what appeared to be a significantly divided jury home at 6:30 p.m. after slightly more than four hours of deliberations on the issue of whether Drake, 45, committed second-degree murder or second-degree manslaughter in the killings of Steven Rosenthal, 18, and Amy Smith, 16.

"Rob always knew he was guilty of something," his wife, Marlene Drake, told reporters after court recessed Monday. "I know what he told me, and I believe he told me the truth. . . . He never saw them. He never intended to kill them."

Mrs. Drake, a nurse who lives in Hyde Park, married Drake while he was in state prison.

"We got married . . . after they changed the law in '89," she said, although she declined to say how they met. She said they have no children.

Two murder convictions would leave Drake facing the same consecutive sentences of 25 years to life in prison that he received when he was convicted at his first trial in October 1982, a conviction that was overturned.

But a double manslaughter verdict, carrying up to 15 years in prison for each victim, would mean he would be eligible for parole as soon as possible, since he has already served enough time for a conditional release.

A courthouse source said the jury's final note Monday asked what would happen if they failed to reach a unanimous verdict on one of the two victims. That appeared to indicate that some jurors view the circumstances of Smith's death differently from those involving Rosenthal's death.

In summations Monday, Assistant District Attorney Thomas H. Brandt and defense attorney Andrew C. LoTempio agreed that Smith was shot first, killed by two .22-caliber rifle bullets in the back of the head, before 14 rounds struck Rosenthal in the face, neck and chest.

Drake testified Thursday that he thought the car in which the two victims were sitting was an empty, abandoned car that he decided on the spur of the moment to vandalize.

Brandt and LoTempio agreed that Smith had her back to the window when the first shots were fired.

Brandt said that meant Rosenthal must have been looking right at Drake just before he was shot, since the first bullets struck him under the nose.

"Steven Rosenthal is staring in stunned disbelief at the person who's pointing a gun at him and pulling the trigger," Brandt told the jury during his 87-minute summation. "He's not going to leave an eyewitness at the scene."

The prosecutor said that is why Drake admittedly stabbed Rosenthal in the back with a 7 1/2 -inch hunting knife after he was shot.

Drake testified that he just wanted Rosenthal to stop groaning.

Marlene Drake told reporters that her husband left his real explanation out of his testimony. "It was like if you saw a wounded animal, you wouldn't want it to keep suffering," she said he told her.

His conviction for the killings in the parking lot of the former St. Mary's Manufacturing, now Confer Plastics, off River Road in North Tonawanda, was overturned in January 2009.

The 2nd Circuit U.S. Court of Appeals found that the verdict was tainted by the use of a bogus "expert witness" who, the court ruled, committed perjury with the knowledge of then-Niagara County District Attorney Peter L. Broderick Sr.

"Do you really believe that when [Drake] left the house that night he intended this to happen?" LoTempio asked the jury during his 57-minute closing argument.

He said there was no evidence that Drake knew Smith and Rosenthal or where they would be that night.

Intentional killing isn't the same as premeditated killing, Brandt told the jury.

"We don't have to prove premeditation," Brandt said. "We have to prove that when he pulled the trigger, he knew there were two people there, not that he knew who they were."

e-mail: tprohaska@buffnews.com

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