- Associated Press - Friday, August 28, 2015

CONCORD, N.H. (AP) - A man convicted of killing an 18-year-old New Hampshire woman more than four decades ago wants to appeal a recent court decision denying him a new trial.

Robert Breest, 77, denies beating Susan Randall to death and tossing her partially nude body onto the frozen Merrimack River in Concord in February 1971. He has twice been denied parole because he refuses to admit to the crime and take part in sex offender treatment. Instead, he has tried to clear his name through DNA testing as technology and collection methods improved.

In his most recent bid for a new trial, Breest’s attorneys argued that the discovery of a second male source of DNA in scrapings taken from under Randall’s fingernails strongly suggests she had a violent struggle with at least two men, contradicting the state’s claim that Breest acted alone. A Merrimack County Superior Court judge last month denied him a new trial, prompting defense attorneys to ask the state Supreme Court on Friday for permission to appeal.

In that request, attorneys argue that the lower court used the wrong standard when it said Breest must show that the new evidence would result in acquittal, not merely a hung jury.

“It’s the difference between having to convince one person, or convince 12,” attorney Ian Dumain said in an interview. “There’s evidence there that jurors would reasonably find points toward guilt, we understand that. But in weighing that evidence, the question is, who do you have to convince, one or 12?”

He compared Breest’s case to the prosecution of Pedro Hernandez for the 1979 murder of 6-year-old Etan Patz in New York. A judge declared a mistrial in May after the jury deadlocked 11-1 in favor of guilt.

“We think in the context of a retrial today, where jurors are more sophisticated about scientific evidence, false confessions and jailhouse snitches than they were 45 years ago, that you could have in a retrial hold-out jurors who hang the jury,” Dumain said.

Breest’s attorneys also argue that the lower court incorrectly excluded new, non-DNA evidence that Breest would put forward at a new trial. They argue that the judge should have considered whether the DNA evidence coupled with the non-DNA evidence would result in a different outcome at a new trial, not whether the outcome would have been different had the DNA been presented at the original trial.

Assistant Attorney General Elizabeth Woodcook declined to comment on the merits of those arguments but said the state may ask the Supreme Court to uphold the lower court’s ruling without a full appeal.

At a hearing in May, she argued that neither the most recent DNA tests nor previous results exclude Breest as the killer. She said the second source of DNA could have been the result of “casual contact” between Randall and someone else, or due to contamination during the collection and testing process.

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