THE STATE OF NEW HAMPSHIRE SUPREME COURT 2016 Term. No THE STATE OF NEW HAMPSHIRE ROBERT BREEST

Transcription

1 THE STATE OF NEW HAMPSHIRE SUPREME COURT 2016 Term No THE STATE OF NEW HAMPSHIRE v. ROBERT BREEST DISCRETIONARY APPEAL UNDER RULE 7 FROM AN ORDER OF THE MERRIMACK COUNTY SUPERIOR COURT BRIEF OF DEFENDANT-APPELLANT ROBERT BREEST Albert E. Scherr, ID No White Street Concord, NH (603) Boies, Schiller & Flexner LLP Ian M. Dumain, admitted pro hac vice 333 Main Street Armonk, NY (914) (914) (fax) To be argued by Ian M. Dumain

2 TABLE OF CONTENTS Table of Authorities... iv List of Abbreviations... vii Questions Presented... 1 Relevant Statutes and Rules... 2 Statement of the Case... 2 Statement of Relevant Facts... 5 a. Breest is convicted on jailhouse snitch testimony and junk science i. David Carita, jailhouse snitch, testifies that Breest confessed to murdering Randall with nobody around ii. The State s experts place Randall s coat in Breest s car iii. The State s closing argument, and the verdict b. Breest obtains multiple rounds of DNA testing... 9 i. Breest obtains STR DNA testing in the Superior Court ii. Breest obtains 4-loci Y-STR DNA testing iii. Breest obtains a second round of 4-loci Y-STR testing iv. Breest obtains 17-loci Y-STR testing v. Additional DNA testing in 2012 reveals at least two male contributors to Randall s fingernail clippings c. New Hampshire enacts RSA 651-D: d. Breest moves for a new trial, the Superior Court dismisses Breest s motion, and this Court vacates and remands for a hearing Summary of the Argument Argument... 17

3 I. To obtain a new trial under RSA 651-D:2, a petitioner must only show that a new trial would produce at least a hung jury: A hung jury would be a favorable outcome for purposes of the statute and a mistrial is a different result from a guilty verdict under the newly discovered evidence test a. A hung-jury standard is consistent with the text of RSA 651-D:2 because a hung jury would be favorable to Breest b. The Superior Court s conclusion is inconsistent with the plain language of the new trial standard c. The cases the Superior Court relied on are inapposite, and other courts have reached the opposite result II. To determine whether the DNA test results were favorable under RSA 651-D:2, VI(b), the Superior Court must look at any evidence that is probative of whether the DNA test results would change the outcome at a new trial a. The Superior Court s conclusion is inconsistent with the plain language of the new trial standard b. The Superior Court s conclusion is inconsistent with the policy and legislative history of RSA 651-D: c. The cases the Superior Court relied on are inapposite, and other courts have reached the opposite result III. The Superior Court s decision was against the weight of the evidence a. On the core factual question regarding the source of the 2012 Major Profile, the Superior Court credited speculation by the State s witness over nonspeculative scientific evidence i. A jury considering only the evidence presented at the 1973 trial would conclude that both male DNA profiles were contributed by Randall s assailants ii. The evidence presented at the May 2015 hearing supported the conclusion that both male DNA profiles were contributed by Randall s assailants The evidence suggests that the 2012 Major Profile has been present underneath Randall s fingernails since before 2001, and that it was deposited by an assailant There is no evidence of contamination in the laboratory during or after the 2008 ReliaGene testing ii-

4 b. The Superior Court s decision was at odds with an analogous Illinois case, People v. Andersen c. The Superior Court compounded its error by ignoring its own earlier decision, in which it concluded that DNA test results like the ones at issue here would have led to a different result Conclusion Rule 16(3)(i) Certification Request for Oral Argument Rule 16(10) Certification Addendum A: Order, State v. Breest, No. 72-S-789 (Merrimack Co. May 3, 2015)... Add. 1 Addendum B: Order, State v. Breest, No. 72-S-789 (Merrimack Co. July 27, 2015)... Add. 9 Addendum C: Text of Statute... Add. 32 -iii-

5 CASES TABLE OF AUTHORITIES Breest v. Helgemoe, 579 F.2d 95 (1st Cir. 1978)... 9 Breest v. Perrin, 125 N.H. 703 (1984)... 6 Breest v. Perrin, 624 F.2d 1112 (1st Cir. 1980)... 6, 35 Comm. v. Cowels, 24 N.E.3d 1034 (Mass. 2015) Ettinger v. Town of Madison Planning Bd., 162 N.H. 785 (2011) Haddock v. State, 286 P.3d 837 (Kan. 2012) House v. Bell, 547 U.S. 518 (2006)... 21, 22 Montenegro v. N.H. DMV, 166 N.H. 215 (2014) People v. Andersen, 80 C 01405, Slip Op. (Ill. Cir. Ct. Cook C ty Illinois July 20, 2015)... 32, 33, 34 People v. Dodds, 801 N.E.2d 63 (Ill. App. Ct. 2003)... 23, 24 People v. Maynard, 80 Misc. 279 (N.Y. Sup. Ct. 1974) People v. Soojian, 190 Cal. App. 4th 491 (Cal. Ct. App. 2010)... 19, 20 People v. Starks, 850 N.E.2d 206 (Ill. App. Ct. 2006) People v. White, 125 A.D.3d 1372 (N.Y. App. Div. 2015) iv-

6 Schlup v. Delo, 513 U.S. 298 (1995)... 21, 22, 23 State v. Bader, 148 N.H. 265 (2002) State v. Breest, 167 N.H. 210 (2014)... 13, 15, 22, 25 State v. Breest, 2014 N.H. LEXIS 145 (2014)... 17, 22 State v. Carr, 110 A.3d 829 (N.H. 2015) State v. Cossette, 151 N.H. 355 (2004) State v. Mendola, 160 N.H. 550 (2010) State v. Mills, 136 N.H. 46 (1992) Wearry v. Cain, 577 U.S. (2016)... 7 STATUTES RSA 651-D: OTHER AUTHORITIES An Act Relative to Post-Conviction DNA Testing: Hearing on H.B. 640-FN Before the House Finance Comm. (Jan. 13, 2004) Cellmark Forensic Services, Y-STR Analysis (last visited June 5, 2015) cellmarkforensics.co.uk/forensic_services/major_crime/forensic_biology/y-strs.html.. 11 Know the Causes, Innocence Project, available at (last visited March 12, 2016) Olivia Cook & Lindsey Dixon, The Prevalence of Mixed DNA Profiles in Fingernail Samples Taken from Individuals in the General Population, 1 Forensic Science International: Genetics 62 (2007) v-

7 Peter Gill, Misleading DNA Evidence, Reasons for Miscarriages of Justice (2014) Random House Unabridged Dictionary 703 (2d Ed. 1993)... 17, 19 Relative to Post-Conviction DNA Testing: Hearing on HB 640-FN Before the S. Judiciary Comm. (2004) , 15, 18 State of New Hampshire Finance Committee, H.R. Committee Report on HB640-FN Relative to Post-Conviction DNA Testing, (2004) available at (last visited at March 12, 2016) vi-

8 LIST OF ABBREVIATIONS 2000 DNA Order refers to the Order dated December 11, 2000 in State v, Breest, No. 72-S-789 Add. refers to the Addendums to this Brief of Defendant-Appellant Robert Breest. App. I refers to the Volume I of the Appendix of Defendant-Appellant Robert Breest App. II refers to the Volume II of the Appendix of Defendant-Appellant Robert Breest App. III refers to the Volume III of the Appendix of Defendant-Appellant Robert Breest Breest s Memo refers to the Post-Hearing Memorandum Hearing Tr. refers to the transcript of the May 2015 RSA 651-D:2 hearing in State v. Breest, No. 72-S-789 RSA 651-D:2 Order refers to the Order dated June 27,2015 in State v. Breest, No. 72- S-789 Scope Order refers to the Order dated May 3,2015 in State v. Breest, No. 72-S-789 Tallbe Aff. refers to the Affidavit of Alicia A. Tallbe that was filed with Breest s Memo. Tr. refers to the trial transcript in State v. Breest, No. 72-S-789 -vii-

9 Questions Presented Question One: To determine whether the DNA tests were favorable under RSA 651-D:2, VI(b), the Superior Court considered whether the new DNA test results are of such a character that a different result will probably be reached at another trial the only disputed element of the test for a new trial based on newly discovered evidence. But the Superior Court held that to meet his burden Defendant-Appellant Robert Breest was required to show that there would be an acquittal at a new trial, not merely a hung jury. Did the Superior Court err? The Burden Question was raised in Breest s Memo at 2; App. II at 152. Question Two: To address whether the new DNA test results are of such a character that a different result will probably be reached at another trial, Breest offered additional, new non-dna evidence that would have (1) been admitted at another trial; (2) provided context for how a jury would have weighed the evidence at another trial; or (3) led to the exclusion of original trial evidence from another trial. But the Superior Court excluded this evidence, limiting the inquiry to the trial evidence, as introduced at the time of [the original] trial, in light of the new DNA test results. Did the Superior Court err? The Scope Question was raised in Robert Breest s Objection to State s Motion to Exclude Non-DNA Evidence. See Add. at 1. Question Three: To determine whether the DNA tests were favorable under RSA 651-D:2, VI(b), the Superior Court considered whether the new DNA test results are of such a character that a different result will probably be reached at another trial. -1-

10 The DNA test results here which undisputedly reveal two male DNA profiles would likely give rise to reasonable doubt because, as the Superior Court concluded in 2001, the results contradict the case the State presented to the jury. Independently, the new DNA test results would probably change the outcome of a new trial because they contradict the State s most important piece of trial evidence a jailhouse snitch s testimony that Breest admitted to killing Randall with nobody around. Still, the Superior Court denied Breest s motion because it concluded, against the weight of the evidence, that a jury could have concluded that the second male DNA profile came from someone other than a second perpetrator. Did the Superior Court err? The Weight Question was raised in Breest s Memo at 1 134, App. II at A 142 A284. Relevant Statutes and Rules The full text of RSA 651-D:2 is set out in Addendum C. Statement of the Case This appeal is about the burden a defendant must meet to obtain a new trial under RSA 651-D:2, VI(b), the evidence that a defendant may present to meet that burden, and whether the Superior Court erred in weighing the evidence below. In 1973, Breest was convicted of murdering Susan Randall. Since 2000, he has sought to prove his innocence through post-conviction DNA testing of scrapings from underneath Randall s fingernails, which the State linked to Breest at trial. -2-

11 In 2012, DNA testing showed that the scrapings contained at least two men s DNA. Breest was excluded as the donor of one profile the 2012 Major Profile but not the other. 1 Breest moved for a new trial under RSA 651-D:2, IV(b). Breest argued he was entitled to a new trial because the DNA test results refuted the State s theory that Breest alone picked up the hitchhiking Randall and killed her. Breest s argument was supported by the Superior Court s 2001 decision granting his first motion for DNA testing. The court reasoned then that a test result showing only that Randall had a violent struggle with some person other than the defendant immediately prior to being killed by him would be so radically different from the State s argument to the jury that applying the standard governing motions for new trials based on newly discovered evidence post-trial DNA testing [was] warranted. Breest also argued that the results would likely create a reasonable doubt at another trial because they contradicted the State s linchpin evidence a jailhouse informant s testimony that Breest admitted killing Randall with nobody around. That argument relied in part on a U.S. Court of Appeals decision finding that (1) the force of the evidence against Breest became compelling only when the jailhouse informant testified and (2) there was a reasonable likelihood the jury s verdict could have been affected had the informant s testimony been eliminated altogether. In May 2015, the Superior Court held an evidentiary hearing on Breest s motion for a new trial. The DNA analyst who performed the 2012 DNA testing 1 While it is true that Breest cannot be excluded as a contributor to the minor male DNA profile, even the State s witness conceded that is equally true of thousands of people in New Hampshire alone. See generally App. II at A252 A 258; Breest s Memo at and underlying evidence. -3-

12 testified in substance that (1) two male DNA profiles were present and (2) contamination in the laboratory and casual contact between Randall and another man were unlikely sources of the 2012 Major Profile (from which Breest was excluded). The State s witness agreed that two male DNA profiles were present in the scrapings but had no opinion whether the 2012 Major Profile (from which Breest was excluded) more likely came from (1) an assailant; (2) casual contact ; or (3) contamination in the laboratory. Before the hearing, the Superior Court excluded over Breest s objection the following non-dna evidence: (1) testimony from a man who had been incarcerated with Breest and the informant that would have contradicted the informant s testimony about Breest s confession and suggested prosecutorial misconduct; (2) expert testimony that the State s core forensic evidence at Breest s 1973 trial was unreliable, rendering it inadmissible in a new trial; and (3) expert testimony that the informant s trial testimony was likely extremely persuasive to jurors and potentially tainted their perception of other evidence. The Superior Court denied Breest s motion for a new trial. It held that Breest s burden was to show that he would have been acquitted at another trial, and he had not met it. In reaching this conclusion, it credited the State s speculative explanations for the 2012 Major Profile over the scientifically more likely scenario that Randall s murder involved at least two men something so radically different from the State s argument to the jury that a new trial was warranted. -4-

13 Statement of Relevant Facts a. Breest is convicted on jailhouse snitch testimony and junk science. The State s case was circumstantial. At closing, the State argued that its thirty-one witnesses for the most part corroborated each other. 2 But none of them could put Randall (and not just a girl who fit her description) in Breest s car (and not just a white car). For that, the State relied on a jailhouse snitch and junk science. i. David Carita, jailhouse snitch, testifies that Breest confessed to murdering Randall with nobody around. After Breest was arrested in Massachusetts, he was jailed at the Middlesex House of Correction. 3 So was David Carita, a convicted killer and gangster who had already twice been a cooperating witness in murder trials. 4 According to Carita, Breest approached him for legal advice. 5 According to Carita, he cornered Breest and asked: Did you do it, or didn t you do it? Did you kill her? 6 According to Carita, Breest then admitted killing Randall. 7 Carita self-professed jailhouse lawyer testified that he then assisted Breest. 8 According to Carita, he asked Breest about the evidence the State might have. 9 And according to Carita, Breest said that 2 Tr. at Tr. at 876, Tr. at , 778, 784, Tr. at Tr. at Tr. at Tr. at 759, 763, Tr. at

14 there were no witnesses. 10 Breest was alone: I asked him if anyone had seen him do it. He said, No. There was nobody around. 11 The prosecution later asked Carita if the State had made any promises or inducements to him. 12 Carita said no, he was testifying only because he was asked to. 13 As United States Circuit Judge Hugh H. Bownes would later observe, that testimony was a flat lie. 14 Carita had received a promise from a New Hampshire sheriff, with the assistance of the Attorney General s office, that Carita would be provided with a new name, location, and haircut. 15 This never came out at trial. And there was more that never came out. In 1975, John J. Kelleher, Jr., an inmate who had been jailed with Breest and Carita, swore in an affidavit that in early 1973 the New Hampshire State Police visited him in prison. The State Police said that Carita had told the police Breest confessed to the Randall murder in Kelleher s presence, and asked him to testify against Breest. 16 Kelleher told the State Police that 10 Tr. at Tr. at 764 (emphasis added). In an earlier statement, Carita told police then that Breest said somebody might have seen him there. At trial, Carita disagreed with the document. Tr. at Tr. at Tr. at Breest v. Perrin, 624 F.2d 1112, 1117 (1st Cir. 1980) (Bownes, J., dissenting). 15 Id. at App. I at A5 A12; App. I at A8 A12; Affidavit of John J. Kellher, Jr., Ex. A. Breest first filed the affidavit to a court in 1983 to supplement a pro se Petition for Writ of Habeas Corpus he had filed in this Court. Petition for Writ of Habeas Corpus, State v. Breest, No (N.H. Sup. Ct.); October 30, 1983 letter from Robert Breest to Chief Justice John W. King, enclosing May 21, 1975 Affidavit of Donald R. Payne and May 29, 1975 Affidavit of John J. Kellher, Jr.. That petition was dismissed without prejudice to refile in the Superior Court, which Breest did. Order, State v. Breest, No (NH Sup. Ct. November 10, 1983); Petition for Writ of Habeas Corpus, Breest v. Perrin, No. 84-E-001 (Merrimack Co.). The Superior Court summarily dismissed the petition. Order, Breest v. Perrin, No. 84-E-001 (Merrimack Co. March 2, 1984). This Court then affirmed in a written decision that did not discuss the Kelleher affidavit, and focused instead only on the inducements provided to Carita. Breest v. Perrin, 125 N.H. 703, 705 (1984). -6-

15 Breest had never confessed in his presence, and that Carita was a rat and a liar. He refused to testify. This exculpatory information was never disclosed to Breest. 17 In 2013, Kelleher reaffirmed the substance of his 1975 affidavit. 18 ii. The State s experts place Randall s coat in Breest s car. Other than Carita, the only witnesses who linked Breest to Randall were the State s forensic experts. Roger Beaudoin, the chief criminologist of the State Police Crime Laboratory, compared under a microscope particles recovered from Randall s clothing to particles recovered from Breest s car. His ultimate opinion was that there was a high degree of probability and reasonable ability [sic] that we have had contact between this clothing and that car. 19 His only support for that opinion was the presence in Breest s car of what he concluded was a hair similar to those from Randall s coat, a positive benzidene test, and the number of microscopically similar particles recovered from Randall s clothing (eleven) and Breest s car (nine) all viewed through the lens of his professional experience. 20 Charles Hoffman was the chief of the forensic branch of the federal Bureau of Alcohol, Tobacco, and Firearms, and a purported expert in the forensic technique neutron activation analysis. He opined that Randall s coat was in contact with 17 The State s failure to disclose this information would itself warrant a new trial. See, e.g., Wearry v. Cain, 577 U.S. (2016) (granting a new trial based, in part, on state s failure to disclose that informant s fellow inmates had made statements that cast doubt on his credibility). 18 App. I at A5 A12; Affidavit of John J. Kellher, Jr. 19 Tr. at Tr. at 1030, 961. A benzidene test can reveal whether blood or ketchup or citrus juice or certain vegetables might have been present at some point. Tr. at 948,

16 [Breest s] automobile. 21 He based this opinion on six paint particles from Breest s car he concluded were similar to paint particles found on Randall s clothing; a hair from Breest s car he concluded was similar to Randall s coat; and his view that this number of corresponding particles was rare. 22 Both witnesses analyses were junk science. J. Steven Morris, Ph.D., an expert with forty years of experience in neutron activation analysis, opined in a 2013 affidavit that the neutron-activation analysis methods Hoffman based his opinions on are now universally recognized in the scientific community as unreliable and insufficient to support the conclusions presented at Mr. Breest s trial. 23 Based on Hoffman s data, Professor Morris opined that Hoffman s conclusions concerning the paint chips were arbitrary with no basis of objective analysis, 24 and that there was a less than 1% probability that the hair from Breest s car originated from Randall s coat. 25 iii. The State s closing argument, and the verdict. The State focused heavily in its closing argument on Hoffman s neutronactivation analysis testimony and Carita s testimony. The first thing we have to look at, closely and sharply, the State argued, was the neutron-activation evidence. 26 Ultimately, twelve of the thirty-two transcript pages of the State s closing addressed the paint chips. 27 More than any other subject. 21 Tr. at Tr. at App. I at A16 & A18; Affidavit of J. Steven Morris, Ph.D. 8 & App. I at A28; Affidavit of J. Steven Morris, Ph.D App. I at A23 A24; Affidavit of J. Steven Morris, Ph.D Tr. at Tr. at , ,

17 But Carita also received special attention. Conceding that there was no testimonial evidence that support[ed] him, the State argued that Carita was credible because Breest had reason to confide in Carita. Breest had a need for legal advice ; Carita knew something about the law ; Carita tried to help Breest because there seemed to be a legal problem ; Carita acted like Breest s lawyer. 28 Before concluding, the State pointed to scratches that had been observed on Breest s hands weeks after Randall s death, 29 linking them to blood that had been found under Randall s fingernails: Whoever held [Randall] got scratched to the bone You look inside of her fingernail clippings. Her assailant got clawed. 30 The obvious inference the prosecutor wanted the jury to draw was that the identity of Ms. Randall s killer could be found in the dried blood underneath her fingernails. 31 On March 22, 1973, the jury returned a verdict of guilty. 32 b. Breest obtains multiple rounds of DNA testing. i. Breest obtains STR DNA testing in the Superior Court. Breest first sought DNA testing in 2000, years before RSA 651-D:2 was enacted. 33 The State opposed Breest s motion, arguing that a negative match from a DNA test would only establish that Ms. Randall s fingernails had come into direct 28 Tr. at See generally App. II at A183 A184; Breest s Memo at Tr. at App. III at A312; Tallbe Aff. Ex.A, 2000 DNA Order at Breest v. Helgemoe, 579 F.2d 95, 97 (1st Cir. 1978). 33 See generally App. III at A308 A316; Tallbe Aff. Ex.A, 2000 DNA Order. -9-

18 contact with somebody besides the defendant just prior to her death. 34 The Superior Court Judge Kathleen A. McGuire rejected that argument. The Superior Court looked at the new evidence s significance in the context of the trial itself. 35 The court reasoned that an exclusionary DNA test result could mean one of two things, either: (1) the defendant was not the killer; or (2) Ms. Randall [, the victim,] had a violent struggle with some person other than the defendant immediately prior to being killed by him. 36 The court concluded that both of those scenarios were so radically different from the State s argument to the jury that applying the same standard it later applied in the RSA 651-D:2 Order post-trial DNA testing [was] warranted. 37 Cellmark Diagnostics then performed Autosomal Short Tandem Repeat ( Autosomal STR ) DNA testing 38 To begin, a Cellmark analyst isolated DNA extract from Randall s fingernail clippings. 39 The analyst used five small pieces none more than an eighth of an inch, and three much shorter than that. 40 Cellmark reported in March 2001 that the extract included male and female DNA. 41 Breest could not be excluded at three of thirteen genetic markers (or loci ); at the other ten loci no conclusion c[ould] be made regarding Robert Breest and this 34 App. III at A314; Tallbe Aff. Ex.A, 2000 DNA Order at App. III at A312; Tallbe Aff. Ex.A, 2000 DNA Order at App. III at A315; Tallbe Aff. Ex.A, 2000 DNA Order at 8. (emphasis added) 37 App. III at A315; Tallbe Aff. Ex.A, 2000 DNA Order at App. III at A317 A347; Tallbe Aff. Ex. R, Defendant s Hearing Ex. I, March 28, 2001 Report of Laboratory Examination. 39 App. III at A319; Tallbe Aff. Ex. R, Defendant s Hearing Ex. I, March 28, 2001 Report of Laboratory Examination at 2. See also Hearing Tr. at 113: App. III at A348; Tallbe Aff. Ex. S, Defendant s Hearing Ex. J. 41 App. III at A319; Tallbe Aff. Ex. R, Defendant s Hearing Ex. I, March 28, 2001 Report of Laboratory Examination at 2. See also Hearing Tr. at 106:

19 sample. 42 Cellmark also noted additional weak results that might have been DNA from another person. 43 At the May 2015 hearing, the State s expert (Charlotte Word) opined that the sample contained DNA from one female and at least one male. 44 ii. Breest obtains 4-loci Y-STR DNA testing. Breest then successfully sought leave to obtain Y-STR DNA testing, which isolates male profiles from female profiles. 45 Cellmark completed Y-STR DNA testing (on loci) in May Cellmark used the same DNA extract that it had used for the Autosomal STR test conducted earlier in the year. 47 This testing did not exclude Breest as a potential contributor. 48 But as Word conceded, these results were also consistent with the 2012 Major Profile, from which Robert Breest has been excluded. 49 Cellmark again reported in May 2001 that DNA from more than one [male] individual may have been obtained from the fingernail 42 App. III at A320; Tallbe Aff. Ex. R, Defendant s Hearing Ex. I, March 28, 2001 Report of Laboratory Examination at 3. See also Hearing Tr. at 107: App. III at A321; Tallbe Aff. Ex. R, Defendant s Hearing Ex. I, March 28, 2001 Report of Laboratory Examination at 4. See also Hearing Tr. at 108: Hearing Tr. at 262: Hearing Tr. at 62:19 64:5; see also Cellmark Forensic Services, Y-STR Analysis (last visited June 5, 2015) 46 App. III at A349 A355; Tallbe Aff. Ex. U, Defendant s Hearing Ex. K, May 8, 2001 Report of Laboratory Examination. 47 App. III at A349; Tallbe Aff. Ex. U, Defendant s Hearing Ex. K, May 8, 2001 Report of Laboratory Examination at 1. See also Hearing Tr. at 113: App. III at A349; Tallbe Aff. Ex. U, Defendant s Hearing Ex. K, May 8, 2001 Report of Laboratory Examination at Hearing Tr. at 275:

20 clippings. 50 And Cellmark again noted that additional weak results might have been DNA from another person.51 iii. Breest obtains a second round of 4-loci Y-STR testing. Cellmark performed additional Y-STR DNA testing in DNA was extracted from two small fragments of the fingernail clippings, in total about half the size of the 2001 fragments. 53 Breest could not be excluded as a contributor to the sample. 54 But as Word conceded, like the 2001 Y-STR results, these results were also consistent with the 2012 Major Profile, from which Robert Breest has been excluded. 55 iv. Breest obtains 17-loci Y-STR testing. In 2008, ReliaGene Technologies performed 17-loci Y-STR Testing. 56 ReliaGene Analyst Huma Nasir used a much larger sample than Cellmark had for the earlier tests. 57 obtained results. 58 Breest could not be excluded at the 15 loci where ReliaGene ReliaGene also reported that this profile was not present in the 50 App. III at A349; Tallbe Aff. Ex. U, Defendant s Hearing Ex. K, May 8, 2001 Report of Laboratory Examination at 1. See also Hearing Tr. at 114: App. III at A351; Tallbe Aff. Ex. U, Defendant s Hearing Ex. K, May 8, 2001 Report of Laboratory Examination at 3. See also Hearing Tr. at 115: App. III at A360; Tallbe Aff. Ex. X, Defendant s Hearing Ex. M, March 28, 2002 Report of Laboratory Examination at App. III at A356; Tallbe Aff. Ex. W, Defendant s Hearing Ex. L. 54 App. III at A357; Tallbe Aff. Ex. X, Defendant s Hearing Ex. M, March 28, 2002 Report of Laboratory Examination at 1. See also Hearing Tr. at 120: Hearing Tr. at 274:14-275:3. 56 App. III at A369; Tallbe Aff. Ex. CC, Defendant s Hearing Ex. N, May 28, 2008 Forensic Test Results. ReliaGene Technologies would later be purchased by Orchid Cellmark. Hearing Tr. at 33:12-17, 208: Compare App. III at A368; Tallbe Aff. Ex. BB, Defendant s Hearing Exhibit D, with App. III at A348; Tallbe Aff. Ex. S, Defendant s Hearing Exhibit J and App. III at A356; Tallbe Aff. Ex. W, Defendant s Hearing Exhibit L. See also Hearing Tr. at 111: App. III at A369; Tallbe Aff. Ex. CC, Defendant s Hearing Ex. N, May 28, 2008 Forensic Test Results at 1. See also Hearing Tr. at 127:

21 test company s 3,651-sample database. 59 Like Cellmark had in the past, ReliaGene noted that additional male DNA might be present in the scrapings. 60 v. Additional DNA testing in 2012 reveals at least two male contributors to Randall s fingernail clippings. In 2012, the Attorney General consented to additional testing. 61 Nasir, now a Supervisor at Cellmark, collected DNA from the fingernail clippings remaining after the 2008 ReliaGene testing. 62 Nasir used sterile scalpels and swabs to collect material from the underside of the clippings. 63 This method, which was not previously used, minimized the collection of Randall s DNA and maximized the chance of identifying foreign DNA. 64 Nasir also did what Word later described as all [that DNA scientists] can do to avoid and detect contamination. 65 Cellmark reported that the DNA profile obtained from the scrapings/swabbings of Susan Randall s fingernail clippings is a mixture of at least three individuals. 66 To confirm its finding, Cellmark performed additional Y-STR testing. 67 Cellmark obtained at least two male DNA profiles from the fingernail 59 App. III at A369; Tallbe Aff. Ex. CC, Defendant s Hearing Ex. N, May 28, 2008 Forensic Test Results at 1. See also Hearing Tr. at 127: App. III at A369; Tallbe Aff. Ex. CC, Defendant s Hearing Ex. N, May 28, 2008 Forensic Test Results at 1. See also Tr. at 128: See State v. Breest, 167 N.H. 210, 211 (2014). 62 Hearing Tr. at 70: Hearing Tr. at 70:21 23; 72: Hearing Tr. at 224:10-12 ( [T]he advantage is potentially you get, in this particular case, a DNA with less of the female donor present. ). 65 Hearing Tr. at 224: App. III at A373; Tallbe Aff. Ex. GG, Defendant s Hearing Ex. E, June 29, 2012 Report of Laboratory Examination at 1 (emphasis added). See also Hearing Tr. at 80: Hearing Tr. at 85:17 86:

22 scrapings. 68 Breest was excluded as the donor of the 2012 Major Profile, but could not be excluded as the donor of the minor male profile. 69 Cellmark then checked elimination sample databases, including databases containing profiles of every laboratory employee, all laboratory visitors, all known past contamination profiles from Orchid Cellmark or provided by manufacturers of consumables (e.g., swabs and scalpels), and all samples tested in the laboratory in the last 60 days; these checks yielded no sign of contamination. 70 Cellmark also checked similar legacy databases from ReliaGene; this too yielded no sign of contamination. 71 c. New Hampshire enacts RSA 651-D:2. The bill that would ultimately become RSA 651-D:2 was introduced in During the legislative debate, the Senate Judiciary Committee addressed the difference between the showings required to obtain (1) testing and (2) relief. Senator Joseph A. Foster noted the apparent inconsistency between the high bar for testing (that the testing would exonerate the petitioner and the lower bar for relief (favorable results). 73 He asked whether to grant a new trial a court would have to find a person innocent of the crime charged or something less than that. 74 Attorney Will Delker, then of the Criminal Justice Bureau of the Attorney General s Office, addressed Senator Foster s concern: 68 App. III at A379; Tallbe Aff. Ex. HH, Defendant s Hearing Ex. G, June 29, 2012 Supplemental Report of Laboratory Examination at 1. See also Hearing Tr. at 88: Id. at A379; Id. at 1; See also Hearing Tr. at 88: Hearing Tr. at 77:19 21; 78: :1 13; 79: Hearing Tr. at 163: State of New Hampshire Finance Committee, H.R. Committee Report on HB640-FN Relative to Post-Conviction DNA Testing, (2004) available at (last visited at March 12, Relative to Post-Conviction DNA Testing: Hearing on HB 640-FN Before the S. Judiciary Comm. 25 (2004). 74 Relative to Post-Conviction DNA Testing: Hearing on HB 640-FN Before the S. Judiciary Comm. 4 (2004). -14-

23 Attorney Delker: I think it just basically gives the court an opportunity to look at the whole package and decide should a new trial be granted here or not or should judgment of acquittal be entered. In that way it can consider what the just remedy is. It gives the court the full range of options. Chances are it is going to result in acquittal if the test establishes the questions. 75 Or in Senator Foster s terms, something less than acquittal. d. Breest moves for a new trial, the Superior Court dismisses Breest s motion, and this Court vacates and remands for a hearing. Breest moved in April 2013 for a new trial. 76 The Superior Court dismissed Breest s motion on procedural grounds. 77 But in December 2014 this Court reversed and remanded the case to the Superior Court to determine whether the DNA results are favorable under RSA 651-D:2, VI(b). 78 The Court observed that the statute does not impose a clear and convincing evidence standard upon the determination of whether DNA evidence is favorable to the defendant. 79 Summary of the Argument The RSA 651-D:2 Order should be reversed for three reasons. First, the Superior Court erred when it held that to obtain a new trial Breest was required to show that he would be acquitted at a retrial, and not only that there would be at least a hung jury. The acquittal standard is inconsistent with RSA 651- D:2, VI(b), which contemplates relief when a defendant obtains favorable results. It is also inconsistent with the plain language of the test the Superior Court applied, 75 Relative to Post-Conviction DNA Testing: Hearing on HB 640-FN Before the S. Judiciary Comm. 26 (2004). 76 State v. Breest, 167 N.H. 210, 211 (2014). 77 See id. at Id. 79 Id. at 214 n.3. The State asked the Court to strike the footnote containing this language, but the Court denied the request. Order, State v. Breest, No (Jan. 14, 2015). -15-

24 which allows relief on the showing of a different result. Other courts addressing this question have reached the commonsense conclusions that a hung jury is a different result from a conviction and favorable to the defendant. Second, the Superior Court erred when it excluded new non-dna evidence that would (1) be admitted at another trial; (2) provide context for how a jury would weigh the evidence at another trial; or (3) lead to the exclusion of original trial evidence from another trial. This evidence was probative of whether the new DNA test results are of such a character that a different result would probably be reached at another trial the governing legal test. In excluding it, the Superior Court rejected the plain language of the governing test in favor of dicta from an Illinois case that did not even address the question. And in fact, another Illinois case that did address the question took the approach that Breest advocates as do analogous federal cases. And third, the Superior Court erred in weighing the evidence. In 2001, the Superior Court concluded that DNA test results showing that Randall had been in a violent struggle with two men would meet the new trial standard. The trial evidence and the hearing evidence established that Randall was probably attacked by two men. But the Superior Court denied Breest relief because Breest had not establish[ed] that Susan Randall had a violent struggle with a second assailant, noting that the 2012 Major Profile could have been deposited during casual contact or could have been caused by contamination. 80 The Superior Court s crediting of 80 Add. at 29 30; RSA 651-D:2 Order at (emphasis added) -16-

25 speculation what could have happened over the scientific evidence about what was likely to have happened was error. Argument I. To obtain a new trial under RSA 651-D:2, a petitioner must only show that a new trial would produce at least a hung jury: A hung jury would be a favorable outcome for purposes of the statute and a mistrial is a different result from a guilty verdict under the newly discovered evidence test. The Superior Court erred when it held that to obtain a new trial Breest was required to show that he would be acquitted at a retrial, and not only that there would be at least a hung jury. The acquittal standard is inconsistent with RSA 651- D:2, VI(b), which contemplates relief when a defendant obtains favorable results. It is also inconsistent with the plain language of the test the Superior Court applied. a. A hung-jury standard is consistent with the text of RSA 651-D:2 because a hung jury would be favorable to Breest. To start, an acquittal standard is inconsistent with the text of RSA 651-D:2, VI(b), which contemplates relief when new DNA test results are favorable. 81 Favorable, an ordinary word, should be given its ordinary meaning. 82 Favorable means positive or advantageous or granting what is desired. 83 A hung jury at a new trial would be positive or advantageous to Breest. More than four decades have passed since the original trial, and the State would likely conclude after a mistrial that it would be a waste of resources to retry Breest for a third time. That outcome a mistrial with no retrial would be favorable. Requiring Breest to show that he would be acquitted sets the bar higher. 81 State v. Breest, No N.H. LEXIS 145, *8 (2014). 82 Montenegro v. N.H. DMV, 166 N.H. 215, 223 (2014). 83 Random House Unabridged Dictionary 703 (2d Ed. 1993). -17-

26 Other parts of RSA 651-D:2, VI(b) point away from an acquittal standard. The statute empowers the court to enter any order that serves the interests of justice upon a favorable DNA test result, including an order vacating and setting aside the judgment and an order resentencing the petitioner. 84 This shows that the legislature did not intend to limit relief to only petitioners who could show they would be acquitted on a retrial. Had the legislature so intended, then the language about retrying or resentencing the petitioner would have been superfluous. The interests of justice would never be served by retrying or resentencing a petitioner who had already shown that he would be acquitted at a hypothetical retrial. So the legislature must have contemplated relief in situations where a petitioner could show only something less than that he d be acquitted of the crime of conviction. Similarly, the legislature used the word exonerate twice in RSA 651-D:2 both times when discussing the showing the defendant would need to make to obtain testing. 85 In the remedial provision, however, the legislature used the word favorable. It would have been easy enough for the legislature to have limited the remedy to cases where DNA test results exonerate the petitioner. 86 But it didn t, as the legislative colloquy between Attorney Delker and Senator Foster highlights RSA 651-D:2, VI(b). 85 RSA 651-D:2, VI(b). 86 Cf. Ettinger v. Town of Madison Planning Bd., 162 N.H. 785, 791 (2011) ( When the legislature uses different language in the same statute, we assume that the legislature intended something different. ). 87 Relative to Post-Conviction DNA Testing: Hearing on HB 640-FN Before the S. Judiciary Comm (2004). -18-

27 b. The Superior Court s conclusion is inconsistent with the plain language of the new trial standard. Requiring proof of an acquittal would be also inconsistent with the plain language of the standard the Superior Court applied. To determine whether the new DNA tests results were favorable under RSA 651-D:2, VI(b), the Superior Court considered whether the new DNA test results are of such a character that a different result will probably be reached at another trial. 88 A mistrial would be a different result from a conviction, giving that phrase its ordinary meaning. 89 c. The cases the Superior Court relied on are inapposite, and other courts have reached the opposite result. In reading different result in the new trial standard as meaning acquittal, the Superior Court principally relied on State v. Bader. 90 But Bader did not address this question, and other courts have adopted the interpretation Breest urges. To start, Bader did not address whether a different result could mean a hung jury. Bader addressed whether a defendant was required to show that newly discovered impeachment evidence gave rise to a possibility or probability of a different result not what different result meant. 91 Other courts, however, have addressed the question presented here whether a hung jury is a different result from a guilty verdict. And the better-reasoned cases have concluded that it is. For example, the California Court of Appeal considered whether a hung jury was a different result for purposes of the test governing motions for a new trial 88 Add. at 27; RSA 651-D:2 Order at 19 (citing State v. Cossette, 151 N.H. 355, 361 (2004). 89 See, e.g., Random House Unabridged Dictionary 1897 (2d ed. 1993) (defining different as not alike in character or quality, among other things). 90 Add. at 27; RSA 651-D:2 Order at State v. Bader, 148 N.H. 265, (2002). -19-

28 based on newly discovered evidence. 92 The court held that a defendant meets his burden of establishing that a different result would be probable by proving that it is probable that at least one juror would have voted to find him not guilty. 93 The court relied in part on the common sense conclusion that a hung jury is a more favorable result than a guilty verdict, noting that a defendant found guilty will be subject to sentencing while a hung jury would result in, at most, a retrial of the case. 94 That common-sense conclusion applies equally here. II. To determine whether the DNA test results were favorable under RSA 651- D:2, VI(b), the Superior Court must look at any evidence that is probative of whether the DNA test results would change the outcome at a new trial. The Superior Court erred when it excluded new non-dna evidence that would (1) be admitted at another trial; (2) provide context for how a jury would weigh the evidence at another trial; or (3) lead to the exclusion of original trial evidence from another trial. This evidence was probative of whether the new DNA test results are of such a character that a different result would probably be reached at another trial the governing legal test. a. The Superior Court s conclusion is inconsistent with the plain language of the new trial standard. The Superior Court held that to prevail Breest was required to satisfy the standard governing motions for a new trial based on newly discovered evidence. 95 The dispositive element of that test was whether the evidence is of such a character 92 People v. Soojian, 190 Cal. App. 4th 491, 518 (Cal. Ct. App. 2010). See also People v. Maynard, 80 Misc. 279, 289 (N.Y. Sup. Ct. 1974) (noting a mistrial is a more favorable verdict for purposes of motion for a new trial). 93 Id. at Id. 95 Add. at 27; RSA 651-D:2 Order at 19 (holding the existing new trial standard should apply. ). -20-

29 that a different result will probably be reached upon another trial. 96 By its terms, the standard considers the newly discovered evidence in the context of a retrial. It does not consider as the Superior Court had it what the outcome would have been had the evidence been introduced at the original trial, holding all else equal. Federal habeas law provides a useful analogy. Under the United States Supreme Court case Schlup v. Delo, a prisoner s procedurally barred habeas claim may be heard if it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence supporting the claim for relief. 97 Like a defendant seeking a new trial under New Hampshire law, a Schlup petitioner must present new reliable evidence whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence that was not presented at trial. 98 But a Schlup court s analysis is not limited to such evidence. 99 Instead, the court must consider all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial. 100 The 2006 United States Supreme Court case House v. Bell shows that Schlup permits the type of evidence excluded here. 101 In House, the Court considered whether the petitioner had met the Schlup standard. 102 In finding he had, the Court 96 State v. Mills, 136 N.H. 46, 51 (1992) (emphasis added). 97 House v. Bell, 547 U.S. 518, (2006). See also Schlup v. Delo, 513 U.S. 298, 327 (1995). 98 House, 547 U.S. at 537 (citing Schlup, 513 U.S. at 327). 99 Id. (emphasis added) 100 Id (internal citations omitted) U.S Id at

30 relied on, among other evidence, exculpatory testimony from two witnesses who were available at the time of trial but waited over ten years to come forward. 103 The Schlup approach which is directed at a similar factual question as the question here makes sense. And at least one Justice was focused on the non-dna evidence when the case was last before the Court: the first question posed at oral argument concerned John J. Kelleher, Jr.. Justice Lynn called the information about Kelleher s testimony very troubling. 104 No Justice suggested it was irrelevant. b. The Superior Court s conclusion is inconsistent with the policy and legislative history of RSA 651-D:2. The Superior Court s decision was also at odds with the legislative history of RSA 651-D:2. As this Court has noted, the goal of the statute is to protect the rights of the wrongfully convicted. 105 While DNA technology has unparalleled utility in advancing that goal, there is nothing in the legislative history that evinces an intent that other new, non-dna evidence be ignored in evaluating whether DNA test results were favorable. And why would a legislature concerned with helping the wrongfully convicted want a trial judge to ignore perjury and junk science, which are two of the leading causes of wrongful convictions? Id. at App. III at A463; Tallbe Aff. Ex. PP, Transcript of Oral Argument at 4, State v. Breest, No , 2014 LEXIS N.H. 145 (2014). (emphasis added) 105 State v. Breest, 167 N.H. 210, 214 (2014) (citing An Act Relative to Post-Conviction DNA Testing: Hearing on H.B. 640-FN Before the House Finance Comm. (Jan. 13, 2004) at See Know the Causes, Innocence Project, available at (last visited March 12, 2016). -22-

31 c. The cases the Superior Court relied on are inapposite, and other courts have reached the opposite result. In resolving the Scope Question, the Superior Court relied principally on an Illinois case that did not even address the question of new, non-dna evidence. 107 An Illinois case that did address it, however, took the approach Breest advocates. After acknowledging that RSA 651-D:2 does not detail the scope of the hearing, the Superior Court observed that it would be appropriate to look to Illinois case law because the New Hampshire statute was based on an analogous Illinois statute. 108 The Superior Court looked to People v. Dodds, 109 an appeal from the dismissal of a petition for post-conviction relief. 110 The Illinois Appellate Court reversed, holding that the petitioner was entitled to an evidentiary hearing. The Dodds court then observed that on remand the trial court must consider the trial evidence in the light of the new DNA test results to determine whether a new trial was warranted. 111 This was dicta. The question whether new, non-dna evidence could be considered at the hearing was not presented in Dodds. The question was whether Dodds was entitled to a hearing at all. And there is no 107 The Superior Court also cited a Kansas case for the proposition that rulings in other jurisdictions hold[] that new DNA evidence must be evaluated in the context of the trial evidence. Add. at A8; Scope Order at 8 (citing Haddock v. State, 286 P.3d 837, 855 (Kan. 2012)). But that case did not address whether non-dna evidence would be admissible in a hearing under the statute. See generally Haddock, 286 P.3d 837. And in fact, the Kansas court cited the same federal Schlup v. Delo standard Breest advocates for on the very page the Superior Court cited in the Scope Opinion. Id. at Add. at A4; Scope Order at Add. at A4; Scope Order at People v. Dodds, 801 N.E.2d 63, 65 (Ill. App. Ct. 2003). 111 Id. at

32 suggestion in the opinion that Dodds actually sought to introduce any new, non- DNA evidence. 112 This is not to say that the Illinois Appellate Court has never provided guidance on this question. To the contrary, in granting a new trial under the Illinois statute that is the model for RSA 651-D:2 that court has relied on just the type of non-dna evidence the Superior Court excluded here. Specifically, in a 2006 decision citing Dodds, the Illinois Appellate Court relied both on DNA evidence and new, non-dna evidence in reversing the trial court s decision denying a new trial. 113 As the Superior Court noted in the Scope Order, it is appropriate to look to Illinois case law for guidance in interpreting RSA 651-D:2. And the only Illinois case that Breest, the State, or the Superior Court has identified that actually implicated the Scope Question yields the precise result Breest advocates. III. The Superior Court s decision was against the weight of the evidence. If the Court agrees with Breest on the Scope Question, the Court need not reach the Weight Question: the case could be remanded for an analysis of whether the DNA test results are favorable in light of the trial evidence and the new, non- DNA evidence. But if the Court reaches the Weight Question, it should reverse the Superior Court s decision as against the weight of the evidence. d. On the core factual question regarding the source of the 2012 Major Profile, the Superior Court credited speculation by the State s witness over non-speculative scientific evidence. 112 Dodd s counsel has confirmed to Breest s counsel that Dodds did not attempt to present new, non- DNA evidence in the trial court. 113 People v. Starks, 850 N.E.2d 206, 214 (Ill. App. Ct. 2006) (reversing trial court s denial of a new trial based, in part, on new exhibits that showed that the State s serologist s trial testimony was incorrect). -24-

33 Under the Superior Court s 2001 decision granting Breest s motion for DNA testing, results suggesting that Randall was in a violent struggle with two men satisfy the new trial standard. 114 The core factual dispute at the RSA 651-D:2 hearing was thus whether the 2012 Major Profile was more likely deposited by an assailant or some other, innocent source, like casual contact between Randall and another man or laboratory contamination. 115 The evidence established that the most probable explanation for the presence of that DNA profile was that it was deposited by a perpetrator. In the RSA 651-D:2 Order, however, the Superior Court reasoned that Breest had not establish[ed] that Susan Randall had a violent struggle with a second assailant, noting that the 2012 Major Profile could have been deposited during casual contact or could have been caused by contamination. 116 The Superior Court s crediting of speculation what could have happened over the scientific evidence was error. 117 i. A jury considering only the evidence presented at the 1973 trial would conclude that both male DNA profiles were contributed by Randall s assailants. The State s position at trial was clear. In its closing, the State linked the blood under Randall s fingernails to the attack. 118 In 2001, when the State tried to minimize the clippings significance, the Superior Court disagreed: the obvious 114 App. III at A314-A315; Tallbe Aff. Ex. A, 2000 DNA Order at As this Court has already stated, Breest s burden was a mere preponderance. State v. Breest, 167 N.H. 210, 214 n.3 (2014) (observing that the statute does not impose a clear and convincing evidence standard upon the determination of whether DNA evidence is favorable to the defendant ). 116 Add ; RSA 651-D:2 Order at (emphasis added) 117 Cf. People v. White, 125 A.D.3d 1372, 1374 (N.Y. App. Div. 2015) (affirming grant of new trial and rejecting state s speculative arguments that had no support in trial record). 118 App. III at A312; Tallbe Aff. Ex. A, 2000 DNA Order at

34 inference the prosecutor wanted the jury to draw was that the identity of Ms. Randall s killer could be found in the dried blood underneath her fingernails. 119 ii. The evidence presented at the May 2015 hearing supported the conclusion that both male DNA profiles were contributed by Randall s assailants. The inference that Randall s killer s identity could be found in the dried blood underneath her fingernails was reinforced by the hearing evidence. The State s own witness, Charlotte Word, could do no more than identify three possibilities for why two male DNA profiles were present under Randall s fingernails: (1) The half of the fingernail scrapings tested in 2012 contained a large amount of DNA from a different male than the half of the fingernail scrapings tested in 2008; (2) the sample became contaminated during or after the 2008 testing; and (3) the sample became contaminated by consumable items like swabs. 120 But Word could not offer an opinion as to which of these possibilities was most likely. A jury, however, would conclude based on the trial evidence and the RSA 651-D:2 hearing evidence that the most likely scenario is that both male DNA profiles were deposited by assailants. 1. The evidence suggests that the 2012 Major Profile has been present underneath Randall s fingernails since before 2001, and that it was deposited by an assailant. Like Word, the Superior Court did not stake out a view on how the 2012 Major Profile was deposited under Randall s fingernails. But the only nonspeculative, scientific evidence suggests that it was deposited by an assailant. 119 App. III at A312; Tallbe Aff. Ex. A, 2000 DNA Order at Hearing Tr. at 279:5 14; 281:2 9; 309:20 310:

35 At the hearing, even Word conceded that the DNA test results were consistent with Randall having had a violent struggle with two assailants. 121 She also suggested, however, that the DNA could have been deposited by casual contact what she called the contact we have with other individuals in our day-to-day life. 122 She had no opinion whatsoever, though, as to how likely this was. 123 Scientific studies demonstrate that this is not a close question. In his 2014 book Misleading DNA Evidence: Reasons for Miscarriages of Justice, Professor Peter Gill summarized studies that show that the chance of observing a reportable foreign DNA profile (i.e., DNA deposited through casual contact ) in a random individual is low. 124 One of the studies found only a low level of foreign DNA under the fingernails of the general population, suggesting that when a strong mixed DNA profile is obtained from a fingernail swab it is unlikely that it exists only due to previous contact between the suspect and the [victim] and that intimate contact is more likely responsible for this observation. 125 Word acknowledged that Gill is a leading authority, and stated that she owned Misleading DNA Evidence and had heard that it summarized fingernail studies, but had not yet read it. 126 Word was unable to name a single scientific study 121 Hearing Tr. at 279:15 280: Hearing Tr. at 283:14 284:10; 311: Hearing Tr. at 283: App. III at A 382 A388; Tallbe Aff. Ex. II, Excerpted pages from Peter Gill, Misleading DNA Evidence, Reasons for Miscarriages of Justice (2014); Hearing Tr. at 284:14 285: Hearing Tr. at 286:18 25; App. III at A390 A396; Tallbe Aff. Ex. JJ, Olivia Cook & Lindsey Dixon, The Prevalence of Mixed DNA Profiles in Fingernail Samples Taken from Individuals in the General Population, 1 Forensic Science International: Genetics 62 (2007). 126 Hearing Tr. at 284:

36 contradicting Gill s book. 127 This should have doomed her opinion on this point. As Word acknowledged, an opinion has no scientific basis if it has no supporting evidence in terms of peer review or data analysis that can be tested objectively. 128 Scientific studies notwithstanding, the Superior Court searched the record for men with whom Randall could have made contact and found that trial evidence showed Susan Randall had contact with several men during the course of her everyday life. 129 But that s true only in the loosest sense of contact. The trial evidence did not establish that Randall had physical contact with any of the men the Superior Court identified in the RSA 651-D:2 Order. Not Donald Shedd, who Randall had dated while she was still in high school. Not her colleagues at the Holiday Inn or optical company. Not her landlord. But the Superior Court still concluded that such contact was probable at some point during the day or before. 130 That conclusion was unreasonable. There s no testimony supporting the conclusion that Randall probably had physical contact with any of these men in the day or so before she died. And common experience points the opposite way. An exboyfriend from high school? Her co-workers? Her landlord? No. There s also no record support for the Superior Court s suggestion that DNA might have been deposited under the fingernails of Randall s (by-then certainly frozen) hands by any of the three men who handled her body after she was found on the ice Hearing Tr. at 285:4 286: Hearing Tr. at 247: Add. at 12; RSA 651-D:2 Order at Add. at 29; RSA 651-D:2 Order at Add. at 30; RSA 651-D:2 Order at

37 The conclusion that the 2012 Major Profile was transferred by the type of casual contact the Superior Court imagined is also inconsistent with the actual DNA results in this case. Nasir (who has performed thousands of DNA tests in the laboratory) 132 testified that touch DNA the type of DNA that would be deposited through casual contact does not produce quantities as high as the one that was seen in [the 2012 Y-STR results]. So [the source of the 2012 Major Profile] would have to be a biological stain or material that was more than just mere casual touch DNA. 133 In other words, there is simply too much DNA from the 2012 Major Profile which comprised most of the male DNA in the 2012 sample 134 for it to have been deposited through the casual contact the Superior Court hypothesized. 135 The totality of the evidence permits only one reasonable conclusion: Randall s killers were the sources of the DNA underneath Randall s fingernails. 2. There is no evidence of contamination in the laboratory during or after the 2008 ReliaGene testing. The other possibilities Word offered for the 2012 Major Profile were contamination during or after the 2008 ReliaGene testing by another sample or contaminated laboratory materials. The Superior Court concluded that it was more probable that the scrapings were contaminated in 1971 (i.e., through casual contact with the state officials who handled her body after her death) than through 132 Hearing Tr. at 37: Hearing Tr. at 91:12 21 (emphasis added). 134 Hearing Tr. at 89: Specifically, Nasir testified that in her experience casual contact would not have resulted in the quantity of DNA seen in the 2012 Y-STR sample, usually resulting in picograms (or trillionths of a gram) of DNA, as opposed to the seven nanograms seen in the 2012 sample. Hearing Tr. at 91:17 21; 92:

38 either of these methods. 136 The Superior Court was correct insofar as there was no non-speculative evidence whatsoever of contamination in 2008 or afterward. 137 The record evidence concerning contamination in 2008 and 2012 leaves no room for a reasonable jury to conclude that the 2012 Major Profile was the result of contamination. Most important, Nasir explained that the 2012 Major Profile was checked against elimination sample databases of employees, visitors to the laboratory, known contamination profiles, previous samples tested at Orchid Cellmark, 138 and similar elimination sample databases maintained by ReliaGene. 139 None of these checks indicated contamination. Moreover, Nasir testified to a comprehensive set of contamination- prevention practices, which Word characterized as a very extensive effort. 140 For her part, Word testified only to the possibility of contamination generally, saying it s very difficult to prove that a sample hasn t become contaminated... there is no absolute guarantee that any particular test result is without contamination. 141 But notwithstanding the caveat that there can be no absolute guarantee, Word opined that all [that DNA scientists] can do to eliminate the possibility of contamination is have very strict procedures in place to try to avoid it 136 Add. at 30; RSA 651-D:2 Order at As noted above, however, the most likely source of the 2012 Major Profile was an assailant. 138 Hearing Tr. at 77:19 21; 78:1 79:13; 79: Hearing Tr. at 163: Hearing Tr. at 310: Hearing Tr. at 224:18 225:1 (emphasis added). -30-

39 and... have procedures in place that if, under certain conditions, it could be detected, that we would know about it just as she conceded Nasir had done. 142 The support for the State s suggestion that the 2012 Major Profile was deposited by contaminated consumables is even thinner. As with the other possibilities, Word expressed no opinion as to how likely it was that contaminated consumables were the source of the 2012 Major Profile. 143 Nor did she present any statistics on the occurrence of contamination through consumables generally. In sum, there is no support for the conclusion that the source of the 2012 Major Profile was more likely recent contamination than Randall s assailants. * * * * * At trial, the State s position was that the bloody material underneath Randall s fingernails was deposited when Randall clawed her assailant to the bone. 144 And that s the only conclusion supported by evidence and not speculation. If any other of the possibilities the Superior Court posited were an affirmative defense, the State would not even be able to get a jury instruction on them. Under New Hampshire law, to obtain a jury instruction, the requesting party must show some evidence to support a rational finding in favor of the defense, which means more than a minutia or scintilla of evidence... To be more than a scintilla, evidence 142 Hearing Tr. at 224: Hearing Tr. at 278:12 18; 281: App. III at A312; Tallbe Aff. Ex.A, 2000 DNA Order at

40 cannot be vague, conjectural, or the mere suspicion about the existence of a fact, but must be of such quality as to induce conviction. 145 That standard is simply not met here. There is not a scintilla of evidence that the 2012 Major Profile was deposited through casual contact. Not a scintilla of evidence that the 2012 Major Profile was deposited through contamination during or after the 2008 ReliaGene testing. And not a scintilla of evidence that the 2012 Major Profile was deposited through contaminated consumables. All of the State s evidence on these points is at best vague, conjectural, or mere suspicion. The only conclusion supported by the evidence in the case is that the 2012 Major Profile was deposited when Randall clawed her assailants. e. The Superior Court s decision was at odds with an analogous Illinois case, People v. Andersen. The Superior Court s crediting of the State s speculation stands in marked contrast to the Illinois trial court s approach in the recent case People v. Andersen. 146 In Andersen, the court granted the defendant relief from his 1982 convictions for murder and attempted rape. In reaching its conclusion, the Illinois court rejected on the papers many of the same arguments the Superior Court credited here. 145 State v. Carr, 110 A.3d 829, (N.H. 2015) (affirming superior court s decision to deny request for entrapment affirmative defense charge (citations omitted)); State v. Mendola, 160 N.H. 550, 557 (2010) (holding that [t]he defendant's testimony, standing alone, does not constitute some evidence to support her requested instruction where the testimony is intrinsically improbable or flatly contradicted by irrefutable evidence as well as conclusory and self-serving ). 146 App. II at A290 A300; People v. Andersen, 80 C 01405, Slip Op. (Ill. Cir. Ct. Cook C ty July 20, 2015). -32-

41 The victim in Andersen was attacked and stabbed. 147 Two days later, police recovered a bloody knife. 148 Soon after that, police arrested Andersen for disorderly conduct, and he admitted stabbing the victim after she had struggled with him. 149 Andersen later sought post-conviction relief based on DNA test results that excluded him as the source of the DNA under the victim s fingernails and on certain parts of the knife (and was inconclusive as to DNA on the knife s handle). 150 The court ordered a new trial, finding that the role of the knife the central piece of the prosecution s case 151 was rendered an open question by the new (and favorable ) DNA evidence, casting suspicion on other inculpatory trial evidence. 152 In doing so, the court rejected on the papers many of the same arguments the State presses here. In Andersen, (like here) prosecutors suggested that contamination over the last thirty years affected the DNA testing, but the court rejected that argument as mere suppositions. 153 Prosecutors there (like here) also argued that the DNA could have come from any number of sources and was underneath the victim s fingernails long before her murder, but the court credited academic works about the prevalence and persistence of DNA over the prosecutors conjecture. 154 And prosecutors there (like here) argued that there were lingering questions about 147 App. II at A290; Andersen, 80 C 01405, Slip Op. at App. II at A290; Andersen, 80 C 01405, Slip Op. at App. II at A291; Andersen, 80 C 01405, Slip Op. at App. II at A295 99; Andersen, 80 C 01405, Slip Op. at 4, App. II at A297; Andersen, 80 C 01405, Slip Op. at App. II at A298; Andersen, 80 C 01405, Slip Op. at App. II at A298; Andersen, 80 C 01405, Slip Op. at App. II at A296; Andersen, 80 C 01405, Slip Op. at

42 some of the DNA evidence, but the court noted that Andersen did not need to show that the new evidence was completely dispositive for it to change the result. 155 The Illinois court s treatment of these arguments was correct. Had the Superior Court taken the same approach here, it could only have concluded that the 2012 Major Profile had been deposited by an assailant who was not Breest. f. The Superior Court compounded its error by ignoring its own earlier decision, in which it concluded that DNA test results like the ones at issue here would have led to a different result. Had the Superior Court adopted the only supported view of the evidence that the 2012 Major Profile was contributed by an assailant its next step would have been to determine the effect that conclusion would have had at a retrial. That analysis would have been simple, because the Superior Court resolved that question in It concluded then that DNA test results showing that Randall had a violent struggle with some person other than the defendant immediately prior to being killed by him would be so radically different from the State s argument to the jury that the new trial standard would be met. 156 And the DNA test results do more than just up-end the State s entire theory of the case. They also negate the State s single-most compelling piece of evidence Breest s supposed confession to killing Randall with nobody around, as reported by jailhouse snitch David Carita. The loss of the confession alone to say nothing of the DNA test results would likely change the outcome at a new trial. 155 App. II at A298; Andersen, 80 C 01405, Slip Op. at App. III at A315; Tallbe Aff. Ex.A, 2000 DNA Order at

43 The Court need not take our word for it. The United States Court of Appeals for the First Circuit made that assessment after the belated revelation of Carita s secret deal with the Attorney General s Office. That court concluded that [h]ad Carita s testimony been eliminated altogether,... there would be a reasonable likelihood that the judgment of the jury could have been affected. 157 And that conclusion foreshadowed a recent decision of the Supreme Judicial Court of Massachusetts reversing the denial of a motion for a new trial where DNA evidence undermined a piece of evidence that bolstered a linchpin witness s testimony. 158 Conclusion On the existing record, Breest has met the standard for obtaining a new trial. The Court should reverse the RSA 651-D:2 Order and remand the case with instructions that the Superior Court enter an order vacating the judgment and granting a new trial. Failing that, the Court should remand the case for a new RSA 651-D:2 hearing at which the the non-dna evidence would be admitted. 157 Breest v. Perrin, 624 F.2d 1112, 1116 (1st Cir. 1980). 158 Comm. v. Cowels, 24 N.E.3d 1034, 1048 (Mass. 2015) (reversing denial of motion for new trial). -35-

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