Appeals court calls testimony by expert in case ‘quackery’
By Thomas J. Prohaska
NEWS NIAGARA BUREAU
The Buffalo News
TUESDAY, JANUARY 27, 2009
http://www.buffalonews.com/cityregion/story/561414.html
A man convicted in the slayings of two fellow North Tonawanda High School students in 1981 will get a new trial because testimony by an expert witness in the case amounted to nothing more than “quackery,” a federal appeals court has ruled.
The Second Circuit Court of Appeals said Friday that then-Niagara County District Attorney Peter L. Broderick Sr. knew his witness, Richard D. Walter, inflated his credentials and “was committing perjury.”
Among other things, Walter claimed that he “had personal involvement with at least 5,000 to 7,500 cases” at the Los Angeles County coroner’s office.
Doing research from prison, Robie J. Drake, the convicted killer, discovered that Walter’s job in Los Angeles was to clean the laboratory.
Walter also said he testified in court as an expert in Los Angeles many times; in fact, he testified once as a technician on a minor point. He also said he was an adjunct lecturer at Northern Michigan University; in fact, the court said, he spoke in a class as the professor’s guest.
More important to Drake’s conviction, Walter offered what the appeals court called “a fictional syndrome of sexual dysfunction” to satisfy Broderick’s desire to offer the jury a motive for Drake, then 17 and also a North Tonawanda senior, to have killed the two victims, who were apparently kissing in a parked car at the time.
Current Niagara County District Attorney Michael J. Violante, who had nothing to do with the 1982 trial, pointed out that Drake confessed to firing a fusillade of rifle shots into the car in which Amy Smith and Stephen Rosenthal died on the night of Dec. 5, 1981. Rosenthal’s rusty 1969 Chevrolet Nova was parked in a factory parking lot next to a junk yard.
“This guy claimed that he thought the car was empty and he was using it for target practice. He shot through the windows and killed two kids,” Violante said.
A Buffalo Evening News account at the time said Smith was shot twice in the head and Rosenthal was shot 16 times. Drake also confessed to stabbing the groaning Rosenthal twice, telling police, “I didn’t mean to kill him or anything.”
He also admitted to trying to dispose of the bodies by driving the car to the nearby Niagara County landfill on Witmer Road in Wheatfield. While he was putting the girl’s body into the trunk, he was caught by two North Tonawanda policemen on routine patrol.
Drake, who was sentenced to two consecutive terms of 25 years to life in prison, has been behind bars ever since.
The federal court said Broderick had plenty of evidence: Drake’s confession and circumstantial evidence of a sex crime against Smith, including autopsy reports of bites on her chest. A second autopsy determined those were inflicted after the girl was dead.
However, the 29-page ruling said things started to go awry when Broderick learned that a test slide from the Erie County medical examiner’s lab, which he was told showed traces of Drake’s semen on Smith’s body, could not be found. The next day, the medical examiner told Broderick the slide had been found but there was no evidence of
semen on it; a pathologist had erred.
Broderick, who retired as a Niagara County judge at the end of 2007, did not return calls seeking comment Monday. In a 2003 deposition cited by the appeals court, Broderick explained: “I had people who caught this defendant in the act of putting a naked girl in the trunk of a car, and all I needed was some reasonable explanation for why this thing happened, and when I lost the sperm evidence a couple of weeks before trial, I was just looking for somebody to give an explanation as to why this happened. Not that I needed to, but I think juries are always interested in knowing why.”
Dr. Lowell Levine, a forensic dentist who found the bite marks on the dead girl, suggested that Broderick call Walter, a prison psychologist in Michigan.
During a 52-minute phone call on Oct. 7, 1982, Broderick and Walter discussed the case. Later, Walter called back and said “picquerism” was involved. He said that was a syndrome in which a perpetrator obtains sexual satisfaction by sniper activity or stab or bite wounds.
The appeals court called this “fictional” and, “medically speaking, nonsense.”
North Tonawanda City Judge William R. Lewis, who was Drake’s lead defense attorney in 1982, said that he thought something was fishy at the time.
“This testimony fit too much like a glove. Everything Robie Drake did seemed to fit this ‘picquerism,’ ” Lewis said Monday.
The defense wasn’t helped by Broderick’s strategy of not telling them he was going to call Walter to the stand until the day before he did so.
“I remember saying in my summation, ‘Who ever heard of picquerism? You can’t even find it in the dictionary,’ ” Lewis said.
The appeals court said Walter’s testimony was a key factor in leading the jury to convict Drake of two counts of intentional murder, and that’s why he should have a new trial.
Drake exhausted all his appeals in state courts before he was able to work his way into the federal courts. U. S. District Judge John Elfvin rejected his appeal, but in 2003 the Second Circuit ordered that an effort be made to find out if Broderick knew Walter was lying.
After depositions by Broderick and Walter, Elfvin ruled Broderick didn’t know Walter was making false statements and that the falsehoods were not material to the jury’s verdict. Wrong and wrong, the appeals court ruled.
Violante said he contacted the families of the victims after the ruling came out Friday.
“They were shocked, as anyone would be,” he said. “I’m shocked that it took 27 or 28 years for the process.”
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Brent E.Turvey, MS, also author of Criminal Profiling, 3rd Ed. with Elsevier Science (2008), can be reached at bturvey@forensic-science.com.
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