The lawyer for Robert Breest, the man convicted of a 1971 murder, argued in court yesterday that his client deserves a fourth round of DNA tests because the results could help exonerate him.

Breest was convicted in the death of 19-year-old Susan Randall, whose body was found on the frozen Merrimack River under Interstate 93 in East Concord. Breest, now 69, has never admitted guilt and has filed numerous motions for a retrial since his conviction.

A court in 2000 allowed tests to see whether DNA from blood found under Randall's fingernails matched Breest's DNA.

In the first test, a mixture of male and female blood in the sample prevented conclusive results. The second test used technology that could separate male DNA from female DNA, but the results were still inconclusive. The third test showed that the sample from Randall's fingernails matched Breest's DNA. But, under that test, the sample could have matched the DNA of about 1 in 10 adult white males.

Albert Scherr, Breest's lawyer, said in Merrimack County Superior Court yesterday that technological advances since the last test would lead to more discriminating results.

"He has a due process argument based on the ongoing sense that there is not an inculpatory finding and given this significantly more determinative testing," Scherr said. "It doesn't make sense to stop that now, given what's out there."

The new test would match the DNA of two sources at as many as 17 locations on a chromosome, instead of four, the number of locations that could be matched in previous tests. With more locations, the tests would be more discriminatory, said Scherr, who is representing Breest pro bono as part of the New England Innocence Project.

Scherr said that federal courts have recognized the right of access to evidence for testing of people who have been convicted of crimes. He cautioned, however, that he is not arguing that every inmate has an "ad infinitum right to come back to the court each time there's a technology advance." He said that Breest deserves access to the DNA because of a previous ruling that allowed for the testing and because of the ambiguity of the previous results.

"With DNA testing, all you need is one clear non-match at one genetic location," he said.

Will Delker, senior assistant attorney general, argued that the court already settled this matter. Both the Merrimack County Superior Court and the state Supreme Court denied Breest's request for a fourth round of testing in 2004. Delker said that there has been no development in state constitutional law that would allow further post-conviction access to evidence.

Delker also argued that the Scherr's argument ignored a state statute passed in 2004 specifically laying out the requirements for DNA testing by an inmate after conviction.

RSA 651-D, which became law in 2004, allows access to DNA testing only under certain conditions, which Breest has not met, Delker said. Under that statute, Breest must explain in a court petition why the tests would exonerate him, which he had not done.

The hearing was held in Judge Carol Ann Conboy's chambers so that Breest could listen and participate via speakerphone from jail. During open proceedings, he spoke only to acknowledge that the phone was working and to let the lawyers and judge know that the time allotted to him for the hearing by prison officials was finished.

Both lawyers, with prodding from Conboy, debated the law that Conboy should follow in making her ruling - the statute or the constitutional right to due process.

"Is this statute in some way infirm?" Delker asked.

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