In reversal, judge blocks Breest’s request for new trial
Robert Breest’s latest effort to clear his name in the 1971 killing of an 18-year-old Concord woman has hit a glitch, with a decision by a Merrimack County judge to reverse a previous order that had raised the prospect of a new trial for the convicted murderer.
The ruling, issued Nov. 1 by superior court Judge Larry Smukler, blocks Breest’s request for a new trial based on recently discovered DNA evidence, which shows that another, unidentified man had contact with the victim.
In August, Smukler agreed to hold a hearing on the evidence to determine whether it might sway a jury to reach an alternate verdict than the one reached 40 years ago.
That hearing, which was scheduled for next month, has been canceled. Breest’s attorneys have indicated they plan to appeal the decision to the state Supreme Court. They have 30 days from the decision to do so, though it’s not certain the court would accept the petition.
“We think the judge’s first decision was the correct one,” Ian Dumain, one of the defense attorneys, said. “We think we’re entitled to a hearing on a new trial, and we think if we got that hearing we could convince the court to get a new trial.”
Breest was convicted in 1973 of killing Susan Randall and tossing her battered, half-naked body onto the frozen Merrimack River. In the years since, he has maintained his innocence and received multiple rounds of DNA testing trying to prove it. None, including the most recent, has removed him as a suspect in the case.
But Breest’s attorneys have said the presence of another person in the newest round throws a wrench in the state’s original case, which stood on testimony from a jailhouse informant that Breest admitted to murdering Randall, and that he claimed he did so alone.
Smukler wrote in August that he wasn’t convinced the DNA evidence would have altered the verdict, but that it was worth exploring. Though a three-year statute of limitations for requesting a new trial had clearly passed, he agreed that Breest was eligible for one because of the state’s post-conviction DNA testing law, which has no such deadline and supersedes the statute.
The state objected, arguing in a motion to reconsider that Breest isn’t eligible for relief under the law because he had obtained the testing through an agreement with the state, rather than applying for it directly.
Smukler agreed, writing in his latest ruling that the law in fact does not apply in this case, and because it doesn’t, Breest is instead subject to the three-year time limit, which he has failed to meet.
Smukler goes on to suggest that even if Breest could get a new trial, it’s unlikely it would lead to a different end.
“The evidence is neither clear nor convincing,” he wrote, adding that, “at best,” the new test shows Randall had contact with another man sometime close to her death.
The test can’t show whether the contact had been consensual, had taken place hours or days before her death, or had come from a police officer or other person who had handled the body in the decades since it was taken into custody, Smukler added.
“The evidence may potentially raise doubt about whether Breest acted alone; however it is not clear and convincing evidence that a jury would reach a different verdict because there remained substantial circumstantial evidence of Breest’s guilt, which is not undermined by the additional DNA evidence.”
Senior Assistant Attorney General Jeffery Strelzin called the latest order a “significant” development.
“We’re very pleased for the victims,” he said.
(Jeremy Blackman can be reached at 369-3319, email@example.com or on Twitter @JBlackmanCM.)