- Associated Press - Friday, December 19, 2014

CONCORD, N.H. (AP) - A man convicted of killing an 18-year-old woman more than four decades ago can present new DNA results to a court to determine if he should get a new trial, New Hampshire’s highest court ruled Friday.

Robert Breest was convicted of killing Susan Randall in February 1971. Her badly beaten and partially nude body was found on the frozen Merrimack River beneath on overpass in Concord. Witnesses identified Breest as the driver who picked up Randall while she hitchhiked in Manchester, and fibers and paint chips on her clothes were linked to samples taken from Breest’s car.

Breest, now 76, was sentenced to 40 years in prison. He has consistently said he didn’t kill Randall and sought DNA tests to prove it. Tests between 2000 and 2008 couldn’t rule Breest out as a suspect but as DNA technology and collection methods improved, a 2012 test revealed a second male source of DNA in scrapings taken from under Randall’s fingernails.

Based on the new results, Breest asked for a new trial in 2013 but a lower court ruled the new DNA results shouldn’t be considered because of the way he obtained permission to get the test: Breest had not petitioned a court to get the test, as spelled out in New Hamsphire’s constitution, but got the state’s consent without going through the court.

The Supreme Court said Friday that getting the state’s consent was acceptable and that the DNA should be reconsidered. The court compared one defendant who sought the tests by petitioning the court to one - like Breest - who got the state’s consent without petitioning the court.

“The defendant who had petitioned the court for testing would be entitled to relief, whereas the defendant who proceeded with the State’s consent, would not, despite equally favorable DNA test results,” the court wrote in its opinion. The justices called that “an absurd result.”

Ian Dumain, one of Breest’s lawyers, said he believes a lower court will look at the Supreme Court ruling and grant Breest a new trial.

“I’m very encouraged by it,” said Dumain, who once worked for The Innocence Project and is now with the New York City law firm Boies, Schiller & Flexner. “They appear to have been persuaded by our arguments and we’re encouraged and hopeful and confident that we’ll get a good and fair hearing in the trial court and when we do, we should prevail.”

Jeffery Strelzin, a spokesman for Attorney General Joseph Foster, said the office is reviewing the court opinion before deciding how to proceed.

Breest is in prison in Shirley, Massachusetts, to be closer to his wife. He has filed several appeals, and twice been denied parole. In 1996, a New Hampshire state board agreed to parole him if he completed a sex offender treatment program and admitted to the crime. He refused.

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