New Hampshire Superior Court Judge Larry Smukler approved for consideration a friend-of-the-court brief submitted by the Innocence Project on behalf of Robert Breest, who was convicted in 1973 of the murder of an 18-year-old Concord woman.
The brief requests a new trial or at least an evidentiary hearing for Breest—now 77 years old— to allow new DNA evidence to be presented. Testing of DNA evidence from the victim’s fingernails in 2012 revealed the possibility of multiple perpetrators, calling into question the state’s claim that it was a single-perpetrator crime. This evidence, according to the brief, provides a basis for relief under New Hampshire state law.
During the trial, the prosecution also claimed that paint chips and hairs found on the victim’s clothing were matched to those found in Breest’s car using neutron activation analysis (NAA). It is now known that NAA cannot prove that two sets of particles derive from a common origin, and the practice is no longer used in criminal cases.
The only other evidence which incriminated Breest was the testimony of a jailhouse informant who claimed that Breest told him he alone committed the crime. Because the DNA suggests the crime was committed by more than one perpetrator and because the witness testified in exchange for protection in prison from other inmates, the brief says the testimony is unreliable.
The hearing will take place on May 19.