CONCORD — Robert George Breest Jr., 75-years-old and imprisoned for more than four decades for the 1971 murder of 18-year-old Susan Randall will get the chance to argue that new DNA testing from the victim’s fingernail scrapings reveal DNA from two men, evidence that he says could have led to his acquittal.
Judge Larry M. Smukler, presiding in Merrimack County Superior Court, has set a pre-hearing conference in the case for Sept. 3.
Smukler said although it is not entirely clear that the most recent DNA evidence would have produced a different jury verdict, “this court is not convinced Breest’s motion should be dismissed outright.”
“We are pleased with it,” said attorney Ian Dumain of New York City, who represents Breest. “It’s a good decision. We think it’s the right decision and we look forward to the hearing on the merits.” He said the Sept. 3 hearing is more of a scheduling conference to discuss where the case will go from here.
Senior Assistant Attorney General Jeffery Strelzin could not be reached for comment.
The judge rejected the state’s arguments that the statute of limitations had run out in the case, precluding any hearing on the DNA results, and that Breest is not entitled to a new trial because the government voluntarily gave him the DNA evidence.
Breest maintains the new DNA testing reveals that Randall’s fingernail clippings contain DNA from three different people: her and two unidentified men. The laboratory was able to exclude Breest as the primary male donor, but it was unable to identify or exclude him as the donor of the minor DNA.
“More important, because there were two male donors, Breest asserts that this newly discovered evidence destroys the theory of the state’s case presented to the jury 40 years ago. Specifically, Breest contends that the state’s theory was that Breest had acted alone. According to Breest, the evidence of another male DNA profile refutes this theory,” Smukler wrote in the Aug. 20 order.
Breest maintains the new DNA evidence would serve to impeach the jailhouse informant, who testified Breest confessed to him that he alone killed Randall, and that the jury would have reached a different verdict had it known another man contributed to the material found under Randall’s fingerprints.
The state maintains the new results are not compelling, do not indicate a second man was involved in the murder, are not as conclusive as Breest claims and that, at best, it shows Randall had contact with multiple men before her death.
Breest has always maintained his innocence. Seventeen years ago he refused to admit he killed Randall or complete a sexual offender program, two requirements that would have led to his being released from prison.
Randall’s frozen, battered and partially nude body was found on March 2, 1971, on the iced over Merrimack River in Concord. Someone had thrown her off the 50-foot high Interstate 93 bridge.
Breest has repeatedly appealed his conviction, which was upheld by both state and federal appeal courts. Thirteen years ago, he got the OK to have Randall’s fingernail scrapings tested for DNA, a forensic test first introduced in 1985 and which, he contended, would exonerate him.
The first four rounds of testing were inconclusive, according to his defense attorney. The fifth round, however, revealed the DNA from a second man.
It is that unidentified male DNA, along with other “new” evidence, that attorney Ian Dumain and other defense attorneys are hoping will win Breest a new trial and ultimately his freedom.
The defense contends the new DNA analysis of Randall’s fingernail scrapings shows before she died, she was in a violent struggle with at least two men which upends the state’s theory of the case — that Breest acted alone.
Dumain argues the DNA results now disputes the testimony of David Carita, a jailhouse snitch, who was killed by a homeowner after he broke into a home in Hopkinton a few years after Breest’s conviction. At the time, he was living under an alias, provided by prosecutors in exchange for his testimony, something Breest only learned years after his conviction, Dumain said. Prosecutors never disclosed the deal to the defense.