By Lauren R. Dorgan
The Concord Monitor
CONCORD, N.H. — A convicted man has a constitutional right to DNA testing that could prove his innocence, New Hampshire District Court Judge Steven McAuliffe ruled last week. The decision has ramifications in a decades-old legal battle as well as in a national debate about whether such a right exists.
The ruling came in the case of Robert Breest, 70, who was convicted of murdering Susan Randall, a 19-year-old woman whose body was found on the frozen Merrimack River under Interstate 93 in East Concord in February 1971. Breest has fought the conviction for decades in a variety of courts and has won three rounds of prior DNA testing - two that were inconclusive and one that narrowed the matches down to 10 percent of Caucasian males. Breest was in that 10 percent.
“From our perspective, this was the critical ruling,” said Ian Dumain, a New York attorney who has worked on Breest’s case in consultation with the Innocence Project, a nonprofit group that aims to exonerate wrongfully convicted people through DNA tests.
Federal courts around the country have weighed in “going both ways” whether there’s a constitutional right to post-conviction DNA testing, said Buzz Scherr, a professor at Franklin Pierce Law Center who has represented Breest in state courts. The matter has yet to be settled by the U.S. Supreme Court, making McAuliffe’s ruling more meaningful.
“In addition to being significant for Mr. Breest, it is significant in terms of the developing of this body of law nationally,” Scherr said.
Randall was choked and beaten to death, and investigators recovered blood from underneath her fingernails. The prosecutor in her original case told the jury that her assailant was “scratched to the bone.” Breest has repeatedly fought for tests on scrapings from underneath her fingernails. Breest has said he will pay for the tests.
Last year, Breest lost an appeal for more DNA tests in state court. But in his ruling overturning the state’s motion to dismiss Breest’s case, McAuliffe cited the seriousness of the conviction, advances in DNA tests and the “virtually negligible burden” on the state of producing a sample for testing.
“The state’s reticence to provide a sample is difficult to understand on any principled or pragmatic basis,” McAuliffe wrote.
Prosecutor Will Delker of the attorney general’s office said that Breest’s guilt has been proven with eyewitness accounts, testimony from a jailhouse informant who said Breest had confessed to him, as well as physical evidence including fibers that matched Randall’s coat found in Breest’s car and paint that matched Breest’s car found on her coat. Now, Delker said, Randall’s family deserves to have the case put to rest.
“He’s been litigating this case for 35 years now in every conceivable fashion,” Delker said. “And every year the victim’s family has to relive this. ... To keep opening this and keep reopening the wounds is just not fair to them.”
Moreover, Delker said, no one thought about preserving DNA evidence in 1971. The police officers and medical examiner who handled the case may or may not have worn gloves when collecting evidence, a standard vastly different today.
“Even if the DNA came back as someone else other than Robert Breest, it doesn’t tell us that Robert Breest didn’t commit this murder,” he said.
The attorney general’s office has not decided whether it will appeal the ruling, Delker said. Prosecutors could either allow the testing or ask for a summary judgment.
To Scherr, there’s nothing to be lost from the tests, which he believes will establish Breest’s guilt or innocence.
“Either of those results are good results for the government, because the government doesn’t want innocent people in jail,” he said.
Copyright 2008 Concord Monitor