A Niagara County prosecutor said Thursday he is appealing a ruling that Robie J. Drake must be tried a third time on charges of murdering two of his fellow North Tonawanda High School students in 1981.
Assistant District Attorney Thomas H. Brandt said he already has filed papers with the State Court of Appeals, asking for permission to pursue an appeal.
He has until July 11 to file a fuller written argument, and Assistant Public Defenders Christopher A. Privateer and Joseph G. Frazier then will have 10 days to respond.
Brandt said if the state's highest court grants his request, he then would have time to file a full appeal, which would put Drake's third trial off indefinitely.
It is currently scheduled for Oct. 15, but Justice Richard C. Kloch Sr., who sentenced Drake to 50 years to life in prison for two murder counts, said he's in no rush to start another trial, given Brandt's attempt to get the Court of Appeals to intervene.
"I'm not going to be steadfast on any timetable," Kloch said. "There's no written motions before me, and I will await the determination of the Court of Appeals."
In his second trial, in 2010, Drake, now 47, testified in his own defense and admitted killing Amy Smith, 16, and Steven Rosenthal, 18, by firing multiple rounds from a rifle into their parked car outside a North Tonawanda factory shortly before midnight Dec. 5, 1981.
But Drake said he didn't know there was anyone in the rusted-out 1969 Chevrolet Nova. He said he thought it was an abandoned car of a sort he'd shot up in the past.
In both of his trials, in 1982 and 2010, the jury rejected that version of events and convicted Drake of intentional murder instead of second-degree reckless manslaughter.
The April 27 ruling by the Appellate Division of State Supreme Court ordered a third trial on the grounds that the jury heard prejudicial information about a purported bite mark on Smith's breast, allegedly inflicted after her death.
The appellate court ruled unanimously that material was irrelevant because Drake never was charged with a sex crime in the murder case.
For Drake, whose first conviction was thrown out by a federal court in 2009 because of prosecutorial misconduct in the 1982 trial, the hope is that a jury will accept his account of reckless, accidental killing and return a manslaughter verdict.
If that happens, it's an automatic ticket out of jail for Drake, who has already served more than the maximum 30 years for two counts of second-degree manslaughter.
While the appeals process continues, the attorneys agreed to meet privately and go over the transcript of the 2010 trial to redact any material pertaining to the bite mark or other sexual matters.
Brandt said previous testimony would be read to a new jury only if the witness who gave it was unavailable for the third trial. However, it could be used to cross-examine witnesses if they change their story during the next trial.
The attorneys agreed to report back to Kloch on Aug. 9 concerning the redactions.