Convicted Killer Gets DNA Hearing
Robert Breest’s latest attempt to overturn his 40-year-old conviction for murdering Susan Randall and throwing her body on the frozen Merrimack River has overcome its first obstacle. A judge last week denied a motion to dismiss Breest’s request for a new trial and called for a hearing on his central argument: that recently discovered DNA evidence would lead to Breest’s exoneration if his case went before a jury again.
In his order, Merrimack County Superior Court judge Larry Smukler said “it’s not entirely clear” that the new DNA evidence would have produced a different outcome at trial. But he wrote that he “is not convinced Breest’s motion should be dismissed outright,” as the state attorney general’s office requested.
Instead, Smukler will hold a hearing where the two sides will debate the importance of modern DNA evidence in a case tried four decades ago. If Smukler finds the evidence is favorable to Breest — meaning it would probably result in a different verdict — state law would allow the judge to order a new trial, trim Breest’s sentence or even set him free immediately.
A hearing date has not yet been set.
Breest was convicted in 1973 of the grisly murder of 18-year-old Randall, whose body was found naked from the waist down in Concord. In the years since, Breest has maintained his innocence and received four previous rounds of DNA testing trying to prove it. All have failed to clear his name.
But according to his lawyer, the latest test of scraping from beneath Randall’s fingernails shows something the others didn’t: clear DNA profiles for two different men, one of whom is definitely not Breest. Attorney Ian Dumain believes that undermines the entire case prosecutors presented at Breest’s trial, where he was accused of killing Randall on his own as she clawed him in defense.
In his request for a new trial filed in April, Dumain argues the evidence undercuts the word of a jailhouse informant named David Carita who testified that Breest admitted to murdering Randall and claimed he did so alone.
“Our argument is the DNA confirms what should be very clear at this point anyway — that Carita was lying,” Dumain said. “And once you take that brick out of the evidentiary wall, you just lose the conviction. It collapses.”
The latest prosecutor handling the case at the attorney general’s office thinks it’s not so simple. In a motion to dismiss Breest’s request, Senior Assistant Attorney General Jeffery Strelzin said the DNA Breest claims is not his could have been deposited beneath Randall’s fingernails days or even a week before she was murdered. Strelzin said the DNA doesn’t necessarily point to foul play and could have come from Randall having minor contact with another man or even from other DNA on her killer’s hands.
Strelzin last week declined to comment on the case or discuss how he plans to convince Smukler that the new evidence is inconsequential. He is expected to file a more substantial response to Breest’s request soon.
Besides arguing that the DNA results aren’t favorable to Breest, in his motion to dismiss Strelzin also said the statute of limitations for a new trial had passed. Smukler disagreed, finding that the state’s post-conviction DNA testing law, which does not present a statute of limitations, trumps the state’s generic new-trial statute.
Strelzin also said Breest wasn’t entitled to a new trial because his latest DNA test hadn’t been granted through the state law that provides possible recourse should the results be favorable. Instead, the attorney general’s office in 2012 agreed to let Breest test the sample another time.
Smukler also rejected that argument, saying Strelzin’s logic would allow the attorney general’s office to deny possible recourse to a convicted person by simply agreeing to DNA testing.