CONCORD — Attorneys who claim new DNA evidence could overturn the conviction of Robert G. Breest Jr. of a 1971 murder for which he has been imprisoned for four decades were back in court Tuesday in their quest for a new jury trial.
Merrimack County Superior Court Judge Larry M. Smukler met in chambers with defense and prosecuting attorneys where he indicated he should decide by late October on a state motion to reconsider his ruling to grant a hearing on the new evidence, defense attorney Ian M. Dumain said after the hearing. The defense hopes the hearing will result in the court ordering a new trial for Breest, 75.
Should the state’s motion for reconsideration fail, the judge indicated he would schedule a three- to four-day evidentiary hearing in late December, said Dumain, an attorney with the New York law firm of Boies, Schiller & Flexner LLP who represents Breest.
Dumain said he does not expect the state will prevail in its motion to reconsider filed Friday and expects the court will proceed with a hearing on his motion for a new trial.
He also said he likely will ask Breest be released on bail at that time.
“It’s clear Mr. Breest doesn’t present a danger to anybody,”Dumain said.
Breest was convicted of the 1971 murder of 18-year-old Susan Randall. He currently is incarcerated at Massachusetts Correctional Institute in Shirley, Mass.
Randall’s frozen, beaten and partially nude body was found March 2, 1971 on the ice of the Merrimack River in Concord. She had been thrown off a 50-foot Interstate 93 bridge.
Breest’s attorneys claim new DNA tests of scrapings from Randall’s fingernails reveal DNA from Randall and two unidentified men, evidence they say could have led to Breest’s acquittal. The lab excluded Breest as the primary male donor, but was unable to identify or exclude him as the donor of the minor DNA.
Smukler ruled last month it isn’t entirely clear the new evidence would produce a different jury verdict, but said the court is not convinced Breest’s motion should be dismissed outright.
“I’ve always known my husband had nothing to do with this,” said Breest’s wife of 42 years, Carole, 69, of Ayer, Mass.
“My hope is my husband will come home to me as he should be — that this injustice will be corrected,” she added. She and the couple’s son, Manuel, were in court.