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N.H. judge cancels hearing for convict seeking new trial

A Massachusetts man, imprisoned four decades for a New Hampshire murder he says he did not commit, has lost his chance to argue for a new trial.

In an unusual about-face, a New Hampshire judge canceled a December hearing he had earlier ordered for Robert Breest. After prosecutors objected to the judge’s initial ruling, he said he had misunderstood the law governing such requests.

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The hearing would have been the closest Breest, now 75, has come to winning a new trial since he was arrested in 1972.

“It is very unusual for a judge to reverse himself, and we were surprised it happened,” said New York attorney Ian Dumain, who volunteered six years ago to represent Breest for free after learning of the case from the Innocence Project, which helps prisoners try to prove their innocence through DNA testing. Dumain said Breest was disappointed when told about the new decision on Wednesday.

Dumain said his team of lawyers is reviewing the decision and expects to file an appeal to the New Hampshire Supreme Court.

Breest’s attorneys had argued that new DNA test results cast serious doubts about whether he had murdered Susan Randall on a February night 42 years ago and had hurled her body over the Merrimack River Bridge in Concord, N.H.

In a Nov. 1 decision made public this week, New Hampshire Superior Court Justice Larry Smukler said that his earlier ruling in August incorrectly applied a state statute that allows prisoners to argue for a new trial using the results of DNA testing.

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Several rounds of DNA testing since 2000 of the severely degraded evidence, dried blood under Randall’s fingernails, have produced either inconclusive results or failed to rule out Breest as the killer.

The earlier rounds of testing were granted under court order, but the latest batch was performed after an agreement between prosecutors and Breest’s lawyers. Because of that agreement and the lack of a court order for the tests, prosecutors with the New Hampshire attorney general’s office argued that the state statute granting prisoners a hearing for a new trial did not apply.

In August, Smukler disagreed and sided with Breest.

“It would run contrary to the remedial nature of the statute to preclude wrongfully convicted persons who obtain favorable DNA results by settlement or agreement the same remedies available to a person who obtains favorable results under the statute,” Smukler wrote.

But in his latest ruling, Smukler noted the lack of court-ordered DNA testing and stated that the latest results “do not trigger the remedial provisions” of the statute.

Breest’s lawyers have said that the new testing of the dried blood clearly shows evidence of DNA from two men and that Randall was in “a violent struggle” with them before she died, as opposed to a lone murderer, as prosecutors have long contended.

That, Breest’s lawyers say, drives a stake into prosecutors’ central theory of the case and the testimony of the state’s star witness, a jailhouse informant who testified that Breest told him he had acted alone.

The DNA of one of the men does not match Breest’s, while the other could belong to Breest but also would match as many as 1 of every 51 Caucasian males in the database of a company the defense lawyers hired to conduct the test.

But in his latest ruling, Smukler said the mere finding of DNA from two men cannot shed light on when that contact occurred “or even whether the DNA is attributable to someone Randall contacted while living or whether it is attributable to a police officer or other person who contacted the sample in the decades that it has been in police custody.”

The DNA results, he said, do not provide “clear and convincing evidence that a jury would reach a different verdict.”

Smukler also wrote that the court “cannot ignore the reality that a new trial at this time would be substantially prejudicial to the state due to the death of material witnesses and spoilation of evidence.”

The jailhouse informant who testified that Breest told him he acted alone died two years after the trial, according to court documents and news accounts, from a shotgun blast during an attempted robbery.

New Hampshire Assistant Attorney General Elizabeth Woodcock declined to comment on Smukler’s ruling, saying, “We rely on the court document to speak for itself.”

Kay Lazar can be reached at klazar@globe.com. Follow her on Twitter @GlobeKayLazar.

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