A Merrimack County Superior Court judge has denied Robert Breest, convicted of the 1971 murder of Susan Randall in Concord, access to Randall's fingernails for a fourth DNA test, one that he hoped would exonerate him.

Breest was sentenced to 40 years to life in prison for the death of Randall, who was 19 and whose body was found on the frozen Merrimack River under Interstate 93. Breest has never admitted guilt and has filed numerous motions for a retrial.

A court in 2000 allowed tests to see whether DNA from blood found under Randall's fingernails matched Breest's. Though one test found matches between Breest's DNA and the sample, Breest's attorney Buzz Scherr argued that it wasn't conclusive. Scherr called for more tests and access to the DNA under Breest's state constitutional right to due process, but Judge Carol Ann Conboy disagreed.

"Mr. Breest's request is premised on a theory that more testing will demonstrate his actual innocence and thus, his wrongful conviction and confinement," Conboy wrote in her ruling this month. "If anything, Mr. Breest's previous access to the evidence distinguishes his case from others by highlighting the due process he has received."

In the first test after the 2000 ruling, 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 matched Breest's DNA at 4 loci, or points.

But under that test, the sample could have matched the DNA of about one in 10 white men, Scherr said. In an April hearing, Scherr argued that the new DNA test would be more discriminating by comparing the DNA at 12 or 17 loci. The odds of a match at 12 or 17 loci would be one in "millions and billions," Scherr said.

Since Breest had already accessed the DNA samples for previous tests, he should be able to access them again, Scherr argued.

"We think he's entitled to one last, better, final shot," Scherr said yesterday. He said he plans to appeal the decision to the state Supreme Court.

In her opinion, Conboy wrote that she couldn't conclude that new tests would have a "reasonable probability of contradicting earlier test results." A state statute requires someone seeking a DNA test to establish that it would provide results that could reasonably contradict earlier results before a court orders the test.

She also noted the evidence presented to a jury that convicted Breest in 1973.

Investigators had found paint chips from the same batch of paint in Breest's vehicle and near Randall's body.

They found hair from the fur coat that Randall was wearing and dried blood in Breest's vehicle.

Witnesses said that Breest was in the area where Randall had been hitchhiking on the night of her death and that a man with a build similar to Breest's entered a vehicle with a description matching Breest's vehicle.

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