A jury convicted Robert Breest for murdering Susan Randall in 1973. The judge sentenced him to life in prison. Of course, at the time, DNA evidence was unheard of. Since then, courts have released many convicted inmates because of the explosion in the use of DNA evidence in courtrooms . Breest is hoping to be one of them but so far, no luck.
Starting in 2000, Breest’s lawyers got permission to test DNA found on the victim’s fingernails. Until 2008, all these tests could do was not exclude Breest as the contributor of the DNA on the fingernails. So they did not help him.
In 2012, however, Breest’s lawyers were able to use new DNA technology. This time the tests showed DNA from two different men on the victim’s fingernails. Breest could have been one of the men. The other man was definitely not Breest.
Breest’s attracted some of the sharpest legal minds in the state and beyond to help him. On appeal he was represented by law professor Albert “Buzz” Scherr, and one of the top law litigation firms in the country, Bois, Schiller & Flexner. In addition, another top tier national law firm, Wilmer, Cutler, & Pickering, wrote a “friend of the court” brief on his behalf. On that brief New Hampshire lawyer Andru Volinsky, who recently won election to the Executive Council, assisted them.
The Supreme Court Rules
Even with all this legal firepower on his side, Breest lost. The New Hampshire Supreme Court ruled that the fact that another man’s DNA was on the victim’s fingernails was not likely to effect the outcome. Only roughly one out of 140,000 caucasian males have DNA found on the victim’s fingernails. Yet the tests did not exclude Breest. This means it is highly likely he had contact with the victim on the night of her death. But he denied this to the police back in 1973. So the Supreme Court found that the DNA evidence actually hurt him more than it helped him.
The Supreme Court also concluded that the fact that another person’s DNA was on the victim’s fingernails was not particularly helpful for Breest. That DNA may have come from incidental contact. Or, it may have come from lab contamination back in the 70’s, before the lab was even familiar with DNA.
This case has been the greatest test yet for post-conviction DNA testing in New Hampshire. Surely there will be more cases to come.