Convicted murderer entitled to hearing on new DNA evidence after 42 years, Supreme Court rulesBy PAT GROSSMITH
New Hampshire Union Leader
December 19. 2014 12:47PM
CONCORD - A man who has served 42 years in prison for a murder he maintains he did not commit has moved one step closer to a new trial after the New Hampshire Supreme Court ruled Friday that he is entitled to a hearing concerning new DNA results.
Robert G. Breest Jr., now 76, asked the court to vacate a lower court's order that denied his request for a new trial, based on new DNA test results of scrapings taken from underneath the fingernails of murder victim Susan Randall, 18, of Manchester.
"We certainly are in a better spot than we were yesterday at this time," said attorney Ian M. Dumain of New York City, who represented Breest in the appeal. He had yet to speak to his client about the ruling Friday morning.
Carole Breest, 70, of Ayer, Mass., Breest's wife of 43 years who has always stood by him, said she would tell him about the decision when she sees him Friday afternoon at Massachusetts Correctional Institute in Shirley, Mass., where he is incarcerated.
"I'm simply delighted that things are finally going our way," she said in a telephone call. She said she is looking forward to the next process and her husband eventually being freed. Breest is the father of one of Carole Breest's five children. The family, she said, has always believed in his innocence.
The New Hampshire Union Leader was unable to reach Senior Assistant Attorney General Jeffery A. Strelzin for comment.
Dumain explained that the case is now being returned to Merrimack County Superior Court for a hearing to determine if the new DNA test results are favorable to Breest, thus resulting in a new trial for him.
This fifth round of tests, using new and more sensitive technology, produced results which, for the first time, showed that the clippings contained DNA material from two different males, the Supreme Court said in its 5-page ruling. Breest could not be excluded as the donor of one of them, but he was excluded as the donor of the other.
Merrimack County Superior Court Judge Larry Smukler originally ruled in Breest's favor for a new trial and a four-day evidentiary hearing was set for December 2013. However, in November 2013 he vacated his order and agreed with the state, which filed a motion for reconsideration, that Breest was not entitled to a hearing.
The state had maintained because it had agreed to the new DNA testing, and that Breest had not obtained the results through a court order, that he was not entitled to use them to argue for a new trial.
Under state law, a person in custody at any time after conviction is allowed to petition the court for forensic DNA testing of any biological material if the petitioner can establish, by clear and convincing evidence, each of nine enumerated criteria.
The law, the Supreme Court pointed out, goes on to say if "the results of DNA testing conducted under this section are favorable to the petitioner, the court shall order a hearing and shall enter any order that serves the interests of justice, including an order vacating and setting aside the judgment, discharging the petitioner if the petitioner is in custody, resentencing the petitioner, or granting a new trial."
The Supreme Court called the state's argument absurd. Two defendants, both of whom had obtained favorable post-conviction DNA test results - one by petition to the court and the other with the state's consent - would be treated differently under the law, the justices pointed out.
"The defendant who had petitioned the court for testing would be entitled to relief, whereas the defendant who proceeded with the state's consent would not, despite equally favorable DNA test results," the court wrote.
Breest contends if the new DNA test results were presented to a jury, there would be no conviction since the state's theory of the case was that he acted alone when he killed Randall in 1971.
The state maintains the new DNA results are not compelling, do not indicate a second man was involved in the murder, are not as conclusive as Breest contends and that, at best, it shows Randall had contact with multiple men before her death.
Randall's frozen, battered and partially nude body was found March 2, 1971, on the ice of the Merrimack River in Concord. She had been tossed off a 50-foot high Interstate 93 bridge.
The 18-year-old aspiring fashion designer had last been seen hitchhiking in Manchester, not far from where Breest was known to be in the city.
Breest would have been released from prison 18 years ago if he admitted he killed Randall and completed a sexual offender program, which requires him to admit to any other crimes. He refused.
Authorities previously identified him as a suspect in another murder, that of Luella Blakeslee of Hooksett, a 29-year-old French teacher at The Derryfield School in Manchester who disappeared on the Fourth of July in 1969. She had dated Breest.
Her partial remains were found 29 years after her disappearance in a woods in Hopkinton. Her death was ruled a homicide, although the medical examiner was unable to say how she died.