Innocence Project allowed to argue on Breest’s behalf

A judge in Concord has allowed the Innocence Project, a national nonprofit that works to exonerate prisoners with DNA evidence, to argue on behalf of Robert Breest’s request for a new trial.

The group submitted written support for Breest’s plea early this month, but it needed approval for the brief to be formally considered. Judge Larry Smukler of Merrimack County Superior Court issued that Friday.

The Innocence Project has helped to free more than 300 people since its founding in 1992, and its support comes at a crucial moment for Breest, as his attorneys prepare for a showdown next month with the state over his trial request.

Breest was convicted four decades ago of killing 18-year-old Susan Randall and tossing her body onto the frozen Merrimack River in Concord. He has always maintained his innocence, and now, at age 77, contends that new DNA evidence undermines the state’s longtime assertion that he acted alone.

Breest’s team has questioned other components of the state’s case, including the credibility of a jailhouse informant who claimed Breest confessed to him, and the accuracy of now-outdated scientific testing used to link the victim to Breest’s car. Smukler has yet to decide whether to entertain those ancillary arguments; a status conference is scheduled for later this week.

If he does, the Innocent Project’s input could prove especially relevant. The group recently helped the federal government complete a massive post-conviction review of questionable forensic evidence, which found that FBI examiners routinely overstated the precision of their testing on hair samples in cases predating 2000. While those experts were not involved in Breest’s case, his attorneys have argued that the same misleading testimony was made.

In its brief, the Innocence Project notes that neutron activation analysis, the technique used to link hair follicles and paint chips found on Randall to those recovered from 
Breest’s car, is provenly unreliable and no longer used in criminal trials. Furthermore, it claims the testing was performed inaccurately, and that the expert who performed it used a lower scientific standard than he had previously recommended.

Those and other alleged deficiencies “would render the evidence inadmissible if offered today,” lawyers for the group wrote.

The state has argued that Breest repeatedly flagged these and other elements of the trial in the past, never with any success.

“The reliability of the neutron activation analysis evidence and the credibility of the jailhouse informant were thoroughly litigated in the original trial, and in numerous subsequent appeals,” Assistant Attorney General Elizabeth Woodcock wrote in a motion last month. “The New Hampshire Supreme Court and several federal courts have all rejected similar challenges by the defendant with respect to these issues.”

The hearing is scheduled to start May 19.



(Jeremy Blackman can be reached at 369-3319, jblackman@cmonitor.com or on Twitter @JBlackmanCM.)



Correction: An earlier version of this story misstated the Innocence Project’s connection to the hit podcast Serial, which recounts the murder trial of a former Baltimore teen named Adnan Syed . The group is not directly representing Syed; the Innocence Project at the University of Virginia School of Law, an affiliated organization, is.