While an immediate retrial after a hung jury presents some additional hurdles for the defense, the situation is different when 27 years have elapsed since Robie J. Drake was first convicted of the murder of two Tonawanda teens in 1982. And according to his lawyer, Andrew LoTiempo, he’ll need $500,000 for experts if the prosecution wants to persist.
There was never any question that Drake shot the two teens, who were making out in a 1969 Chevy Nova in the parking lot of an abandoned factory. Back in 1981, there was nothing terribly unusual about that, although today two teens kissing may sound a bit quaint. From the Buffalo News :
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.
But the prosecution’s case isn’t based on the shooting, but rather than aftermath.
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.
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.
For obvious reasons, the really good evidence, of sexual mutilation of the girl’s corpse, is what the prosecution sought to use against Drake then, and still wants to use against Drake now. In the interim, however, it caused the Second circuit to toss the conviction.
But in January, the U. S. Circuit Court of Appeals in New York City ordered a new trial on grounds of prosecutorial misconduct.
The federal court found that picquerism is “quackery” and that Broderick’s star witness inflated his resume and committed perjury with Broderick’s knowledge.
While it’s unclear whether the prosecution plans to try its hand a “picquerism” again, it has announced its intention to introduce the sexual mutilation of the corpse. LoTiempo, in his threat to require a half million for experts on retrial, is trying to put the screws to the prosecution if it seeks to use this sordid post hoc evidence.
“That becomes irrelevant now. He’s not charged with doing anything to those people after they were dead,” LoTiempo 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, LoTiempo said, he would have to fight it by hiring a proctologist, a pathologist and experts in DNA, bite marks and ballistics.
While no one can deny the “yuck” factor of Drake’s alleged post shooting conduct, if indeed “yuck” even begins to cover it, this really tests the bounds of undue prejudice. Certainly, the power of this absolutely horrific evidence will be impossible for a jury to ignore, and will assuredly cause a visceral reaction that will prejudice the jury against Drake. But it is, as LoTiempo notes, wholly irrelevant to the issue of murder. It’s just so darned sick and juicy. How can any prosecutor pass up such salacious and disgusting evidence?
But there are other issues raised by this retrial that raise curious issues.
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.
That can happen after 27 years. While there may be no statute of limitations on murder, witnesses often have a finite shelf life.
But all this is happening in beautiful Buffalo, so it’s yet to be seen all of the bill of rights have made their way that far north yet.
H/T Our hinterlands correspondent, Kathleen.
LoTiempo said he would insist on live testimony whenever possible.Whenever possible? Maybe LoTiempo is better at writing zeros on an 18b application than he is at remembering constitutional thingies, like the confrontation clause. It’s really, really hard to cross-examine a transcript, which is why those robed people in D.C. bothered to decide Crawford v. Washington. Whatever difficulties are presented by lost witnesses aren’t the defense’s problem, Andy, and you don’t have suffer testimony read from 27 year old transcripts. Even if that means it’s impossible for the prosecution to make its case.
But all this is happening in beautiful Buffalo, so it’s yet to be seen all of the bill of rights have made their way that far north yet.
H/T Our hinterlands correspondent, Kathleen.
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Crawford was my first thought on reading the headline, too.
But isn’t this the kind of case where testimonial hearsay *would* be allowed?
If the govt can show those witnesses were cross-examined at the earlier trial, and that they’re currently unavailable, that beats a Confrontation objection, yes?
Provided that the issues, meaning the prosecution theory and defense, are the same, maybe. But assuming that the defense is no longer defending a theory of guilt predicated on picquerism, but a different theory of prosecution, than using the old cross would deny the defendant his right to present a defense based upon the new prosecution theory. Maybe.
Good points all… though it seems like the current DA workaround would be
(1) autopsy report comes in, because it was crossed on before (not seeing how the new DA theory could be SO different it’d exclude the autopsy);
(2) DA puts on *new* expert, who looks at autopsy report (and whatever other evidence) and says, “Yep. That’s picquerism.”
As I read Crawford + M-D, confrontation means there’s effectively a statute of limitations in “cold hit” cases: if the coroner’s dead, and there’s never been a chance for cross, the autopsy can’t come in. No autopsy: no case.
A guy can dream….
I suspect Crawford and Melensez-Diaz will be the only check on cold case prosecutions, provided there’s a body. We can both dream.
And don’t count on much life expectancy for Melendez-Diaz. Though, again, a guy can dream.
What happens to Melendez-Diaz? Not a lot of wiggle room there — autopsies are formalized, and testimonial, and (if the coroner doesn’t testify) hearsay. The Court was *very* clear that the constitutional issue trumps the potentially-applicable hearsay exceptions.
Are you thinking Scalia backtracks, or Sotomayor flips (Souter was one of the majority 5), or what?