1 State v. Breest, No. 72-S-789, New Hampshire Superior

Court (Conboy, J.) (July 12, 2007).

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Breest,

Plaintiff

v. Civil No. 06-cv-361-SM

Opinion No. 2008 DNH 012

Attorney General for the

State of New Hampshire,

Defendant

O R D E R

Plaintiff, Robert Breest, was convicted of the murder of

Susan Randall over thirty years ago in state court. He was

sentenced to life in prison and has remained incarcerated ever

since. He seeks access to genetic material removed from under

Ms. Randall’s fingernails for the purpose of subjecting it to

forensic DNA testing, in the hope of developing evidence to

support a claim of actual innocence. The defendant, New

Hampshire’s Attorney General, who has custody of the material,

has moved to dismiss Breest’s complaint on several grounds.

Susan Randall apparently “clawed her assailant ‘to the

bone’”1, and it seems generally uncontested at this point, given

the record developed in Breest’s state criminal case, that modern

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DNA testing might establish that he was not the murderer, if,

that is, he can be excluded as a contributor to the DNA found

under Ms. Randall’s fingernails.

Breest first sought access to the genetic material in March

of 2000, in the context of his state criminal prosecution. He

filed a motion to “bring [the case] forward,” and asked the state

court to order DNA testing. See State v. Breest, No. 72-S-789,

New Hampshire Superior Court (Merrimack County). The New

Hampshire Superior Court considered Breest’s motion as one in

support of a potentially meritorious motion for a new criminal

trial, and ordered the requested DNA testing under applicable

state law, finding, inter alia, that DNA test results would have

been admissible at his criminal trial had the technology been

available, and that such test results would have been highly

probative of his guilt or innocence. Id.

Three DNA tests were eventually performed on the genetic

material by Cellmark Diagnostics, a private laboratory located in

Germantown, Maryland. Cellmark reported that the first test,

performed in March of 2001, proved inconclusive, apparently

because the questioned sample contained a mixture of the victim’s

female chromosomes and the assailant’s male chromosomes.

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A second test was performed in April of 2001. That test

(YSTR testing at 4 loci) was capable of eliminating that common

source of ambiguity in the testing process — a mixture of male

and female chromosomes — by testing only for male chromosomes. 

Cellmark reported that it was able to compare the known and

questioned material at 3 of the 4 loci examined, and that Breest

could not be excluded as the source of the male DNA. Breest

responded with affidavits from four experts in the field who

opined that Cellmark’s conclusions were flawed and the DNA

testing procedures it employed were unreliable.

Given those criticisms, the Superior Court allowed

additional access to the genetic material for a second round of

YSTR testing in January of 2002. Cellmark again performed the

test, and again reported that Breest could not be excluded as the

source of the male DNA in the sample, noting a match between his

DNA and that in the sample at the 4 loci examined. One in ten

Caucasian males (Breest is Caucasian) could expect their DNA to

match the sample at the 4 loci examined in the test.

In May of 2004, Breest sought another DNA test, again in the

context of his state criminal case. DNA technology had improved

significantly since the 2002 testing, and a 12 loci YSTR test was

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then available. The 12 loci test is more discriminating than the

earlier tests that examined only 4 loci. The Superior Court

denied that request, however, finding that Breest failed to

demonstrate “why the tests already conducted are not accurate or

why further testing would demonstrate his actual innocence or

would result in a different verdict after trial.” State v.

Breest, 72-S-789, Doc. No. 126 (McGuire, J.).

In 2006, Breest filed another motion for DNA testing in his

state criminal case, and filed this parallel federal suit as

well. In this civil case, Breest seeks prospective injunctive

relief against New Hampshire’s Attorney General, as custodian of

the genetic material, requiring her to provide an adequate sample

for more definitive DNA testing (i.e., the more discriminating 12

loci YSTR testing, or, presumably, testing under the most

advanced protocol currently available). The state court has

again denied relief in Breest’s criminal case — seemingly based

upon its finding that Breest failed to meet a specific burden

under a recently enacted state statute, RSA 651-D:2, III, that

addresses post-conviction access to genetic evidence for DNA

testing.

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By its terms, RSA 651-D:2, III, authorizes a state court to

order post-conviction DNA testing if a petitioner establishes,

inter alia, that:

(f) The evidence sought to be tested was not

previously tested under DNA technology or the

technology requested was not available at the time of

trial.

[or]

(g) If DNA or other forensic testing was previously done in

connection with the case, the requested DNA test would

provide results that are significantly more discriminating

and probative on a material issue of identity, and would

have a reasonable probability of contradicting prior test

results.

(emphasis added).

The state statute does not expressly limit the number of

post-conviction tests available to a petitioner, but instead

thoughtfully ties the availability of additional testing to

anticipated advances in technology (i.e., “significantly more

discriminating and probative” tests) that might reasonably

provide exculpatory results, different from previous test

results.

It seems evident that a substantially more discriminating

DNA test would ordinarily “have a reasonable probability of

contradicting prior test results” — if “contradicting” is

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2 The term “contradictory,” as used in the statute is

perhaps confusing, given the context. A subsequent and more

discriminating DNA test might be capable of eliminating 99.9% of

all Caucasian males as the contributor, while the test performed

earlier may have been capable of excluding only 50% of all

Caucasian males. If the later, more powerful, test excluded a

suspect that was not excluded by the earlier, less powerful test,

it would plainly be incorrect to say that the different test

results were “contradictory.” There is, of course, nothing

inconsistent in saying a suspect is among 50% of Caucasian males

who “could have” been the source of a questioned DNA sample, but

is conclusively not among .1% who “could have” been the source. 

The results are different — one test could not exclude the

suspect, being too blunt, while the other could — but the results

of those tests would be both consistent and not contradictory,

since each test provided accurate responses to very different

questions, according to varying capabilities.

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understood to mean “exclude the suspect where a prior DNA test

could not exclude that suspect as the source of questioned DNA.2“ 

For example, if the prior DNA testing, as in this case, could say

no more than that 1 in 10 Caucasian males could have contributed

the questioned DNA, and the petitioner could not be excluded from

that 10%, but new testing was sufficiently discriminating to

measure the probability of contribution at 1 in 2 billion, then

it would be fair to conclude that a “reasonable probability of

contradiction” exists. But, where the prior DNA testing was

particularly discriminating, say it established that only 1 in 3

billion Caucasian men, including the petitioner, could have been

the source of the questioned DNA, a subsequent, even more

discriminating, test that could produce a result to an accuracy

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of 1 in 4 billion, would not as easily qualify as having “a

reasonable probability of contradicting prior results.”

In using the phrase “have a reasonable probability of

contradicting prior test results,” I do not think New Hampshire’s

legislature meant to suggest that courts should casually and

uninformedly speculate about future scientific testing outcomes. 

It is, of course, not possible to know in advance whether a

substantially more discriminating DNA test would or would not

exclude a suspect. Rather, I believe the legislature intended to

provide liberal access to genetic material for post-conviction

DNA testing when evolving technology offers a potentially

meaningful and exculpatory result.

In any event, the state court determined that it “cannot

conclude that further tests ‘would have a reasonable probability

of contradicting prior test results.’ RSA 652-D:2, III(g).” Id. 

Order, dated July 12, 2007 (Conboy, J.). Accordingly, Breest’s

motion for more discriminating DNA testing in his state criminal

case was denied.

Breest initially filed this federal civil suit in a pro se

capacity, which triggered preliminary review by the Magistrate

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Judge. The Magistrate Judge examined the still-developing, and

complex, law relative to post-conviction access to evidence for

DNA testing, and concluded that Breest’s complaint stated a

viable Fourteenth Amendment Due Process claim. Breest is now

represented by capable legal counsel, who have filed a detailed

legal memorandum in opposition to the Attorney General’s pending

motion to dismiss.

Discussion

Elusive as it may sometimes be, truth is the proper object

of the justice system. Criminal juries are routinely instructed

not to be concerned about whether the government wins or loses a

particular case, because the government always wins when the

truth prevails and justice is done, whether the verdict be guilty

or not guilty. Prosecutors, especially, are duty bound to

ascertain the truth, whatever it might be, and not merely to

pursue criminal convictions. Therefore, it is, or ought to be,

axiomatic that the truth is never untimely and never to be feared

by the government.

There is legitimate debate among federal courts regarding

the existence, nature, and reach of a civil constitutional right,

under the Due Process Clause of the Fourteenth Amendment, to

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post-conviction access to biological evidence for DNA testing. 

See, e.g., Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002) (“Harvey

II”). But even highly respected judges who think such a right

does not exist, and cannot be vindicated under Section 1983,

still generally agree that modern DNA technology, not available

at the time of conviction, ought to be made available in cases

where test results could serve to establish the truth and free

the innocent. For example, as Chief Judge Wilkinson wrote in

Harvey II:

There is no doubt that Harvey should receive the

biological evidence in this case for DNA testing using

technology that was unavailable at the time his

Virginia conviction became final. In fact, the panel

opinion suggested that the state courts could order DNA

testing. See Harvey v. Horan, 278 F.3d 370, 380 (4th

Cir. 2002)(stating that “state courts are free in ways

that we are not to set the ground rules by which

further collateral attacks on state convictions such as

Harvey’s may be entertained”). And that is precisely

what the state courts have done. The question before

us is thus not whether Harvey should or will receive

the DNA evidence. He should and he will. Rather the

issue is whether a § 1983 action brought in federal

court in the first instance is the appropriate vehicle

for him to access that evidence. (Emphasis supplied.)

Id. at 298.

In this case, as well, it seems to me that Breest should

have the genetic evidence made available for further scientific

testing, taking as true his allegations of inadequate prior

testing, and the development of new and substantially more

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discriminating technology. But, it is not so clear in this case

that the State will provide access to the evidence in its

custody. The state courts have declined to allow further testing

under applicable state law. (Those courts have not been asked,

however, to consider whether a federal constitutional right might

provide a discrete basis upon which to grant the relief sought.) 

And, New Hampshire’s Attorney General, who certainly may provide

the necessary sample as a matter of her discretion, seems

disinclined to do so, absent extensive litigation and a binding

court order.

No doubt the State will say that it opposes Breest’s request

in the interest of preserving the value of finality of criminal

convictions, and, to be sure, finality is an important aspect of

the criminal justice system. But finality falls well below truth

on the scale of relative values. The State might also suggest

that repeated test requests would pose an undue administrative

burden, but there is scant evidence to support such a claim. If

it can even be called a burden to send a small genetic sample to

a qualified laboratory for scientific testing (a sample of

material that the State has no apparent interest in preserving

for its own purposes) it is a rather negligible one, particularly

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given Breest’s asserted willingness to pay for the cost of

testing. 

The issues of federal law presented by this dispute, given

that Breest seeks a successive, not a first, test, are somewhat

nuanced and complicated, and are “not ones that [federal] courts

should particularly relish decision upon, so difficult and

delicate . . . are the answers.” Harvey II, 285 F.3d at 307

(Luttig, J). The immediate legal issue raised by the defendant’s

pending motion to dismiss is whether plaintiff’s complaint

describes a cognizable federal cause of action. In deciding

whether it does, this court is bound to accept as true all wellpleaded factual allegations, and to draw all reasonable

inferences from those facts in plaintiff’s favor. Dismissal is

appropriate only if “it clearly appears . . . that the plaintiff

cannot recover on any viable theory.” Langadinos v. American

Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000). See also Gorski

v. N.H. Dep’t of Corr., 290 F.3d 466, 472 (1st Cir. 2002) (“The

issue presently before us, however, is not what the plaintiff is

required ultimately to prove in order to prevail on her claim,

but rather what she is required to plead in order to be permitted

to develop her case for eventual adjudication on the merits.”)

(emphasis in original).

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The principal issue at this early stage of the litigation,

then, is whether Breest can maintain a viable civil claim against

New Hampshire’s Attorney General under 42 U.S.C. § 1983 or,

stated slightly differently, whether a constitutional postconviction right to access biological evidence for purposes of

DNA testing exists. Later, more difficult questions will arise,

involving the specific circumstances under which such a right can

be invoked and the nature, scope and reach of that right.

In Breest’s criminal case, the State has effectively

conceded that DNA testing could prove critical in either

supporting or putting the lie to his claim of “actual” (as

opposed to “legal”) innocence — an allegation that must be

plausibly asserted in a future federal or state habeas corpus

petition. Breest says that evolving scientific technology can

now more accurately and reliably determine whether his DNA can be

excluded from that found among the victim’s fingernail scrapings,

and he reiterates that the administrative burden on the State to

produce a testable genetic sample is de minimus. He further

claims that technical performance failures substantially

undermined the reliability, and therefore the probative value, of

the previous ambiguous DNA testing done by Cellmark Laboratories. 

And, of course, he stresses that current DNA technology is far

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more discriminating than the 4 loci tests done earlier. In other

words, he credibly suggests that not being excluded by a 4 loci

test says little about the likelihood of exclusion by a more

refined test that can examine 12 loci.

Breest’s claim for relief in this civil case is rather

narrow. He only seeks access to DNA testing, by a qualified

independent laboratory, of biological evidence already in the

State’s possession, pursuant to a more rigorous and meaningful

procedure, and at his own expense. I am persuaded that there is

a federal constitutional right to post-conviction access to

genetic material evidence for DNA testing purposes — a right that

is rooted in procedural and substantive due process rights

protected by the Fifth and Fourteenth Amendments, though the

contours and reach of that right remain imprecise. See, e.g.,

McKithen v. Brown, 481 F.3d 89 (2d Cir. 2007); Wade v. Brady, 460

F. Supp. 2d 226 (D. Mass. 2006); Godschalk v. Montgomery Cty

Dist. Atty’s Office, 177 F. Supp. 2d 366 (E.D. Pa. 2001); Savory

v. Lyons, No. 06-1296, 2006 WL 3423072 (7th Cir., Sept. 11,

2006); Osborne v. District Atty’s Office, 445 F. Supp. 2d 1079

(D. Alaska 2006). But see, Grayson v. King, 460 F.3d 1328 (11th

Cir. 2006); Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002). The

exact nature and scope of that right do, indeed, raise

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extraordinarily delicate and important legal questions, see,

e.g., Harvey II, supra; McKithen v. Brown, supra, and courts must

be cautious in developing those contours on a case-by-case and

fact-specific basis.

In support of her motion to dismiss, the Attorney General

argues that plaintiff’s success in this civil case will serve to

undermine his state conviction, so this suit effectively

constitutes a petition for federal habeas corpus relief, which he

must bring under, and subject to the restrictions imposed by,

28 U.S.C. § 2254. The court disagrees. If plaintiff succeeds in

this civil case, he will have achieved nothing more than an

opportunity to subject a highly relevant biological sample to a

discriminating DNA testing protocol, free from the comparative

inadequacy, and alleged performance deficiencies, said to

undermine the previously reported ambiguous DNA test results.

A more discriminating DNA test may prove inculpatory rather

than exculpatory, or it may be inconclusive. It is not possible

to know what a more discriminating test result will show. But

neither this suit, nor further testing, implicates the validity

of Breest’s criminal conviction. See Heck v. Humphrey, 512 U.S.

477 (1994). Breest’s conviction is valid, and it will remain

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valid, without regard to any relief granted here. Unless and

until his conviction is overturned in a different proceeding that

addresses entirely different issues, Breest will remain in

prison.

Accordingly, this suit is not the functional equivalent of a

federal habeas petition challenging a state conviction, or the

fact of incarceration. It is just a civil suit aimed at

determining, on something of a reliable scientific basis, whether

grounds exist upon which Breest might seek future relief from his

state conviction, in either state or federal court — the only

realistic grounds for such relief at this point being “actual

innocence.” So, I do not agree, as the Attorney General argues,

that plaintiff’s suit is barred as a successive habeas petition.

Next, the Attorney General asserts that plaintiff’s claim is

barred by the Rooker-Feldman doctrine. Again, the court

disagrees. Given the Supreme Court’s recent clarification of

that doctrine in Exxon-Mobil Corp. v. Saudi Basic Industries

Corp., 544 U.S. 280 (2005), Rooker-Feldman does not apply here. 

As explained by the Second Circuit in McKithen, supra, the prior

state court orders in Breest’s criminal case, denying his request

for additional testing under state law, are not the “cause” of

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his asserted injury here. He is not seeking to overturn those

state court orders in federal court. Although he does seek

identical relief — DNA testing of evidentiary material — he seeks

it through an entirely different means, based upon a discrete

federal right, rather than through a motion for new trial under

state law in his state criminal case. See McKithen, 481 F.3d at

21-22. Disposition of his motions for similar relief in the

state criminal context did not involve or affect his federal

civil claim of right.

Nor do principles of res judicata or collateral estoppel bar

this suit. Plaintiff’s earlier efforts in state court were

framed exclusively in the context of his criminal case. The

state court’s rulings did not involve any determination regarding

either the existence, or extent, of a federal civil right to

post-conviction access to biological evidence for DNA testing,

nor has the Attorney General plausibly shown that plaintiff could

have litigated a federal civil claim in the context of his state

criminal case. And, the Attorney General has not shown that the

statutory (or common law) right of access previously at issue in

the state courts is necessarily coextensive with the federal

civil right invoked by plaintiff in this case. See McKithen, 481

F.3d at 43.

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Finally, the State’s motion also seeks dismissal of any

state law claim raised by plaintiff. But plaintiff is not

asserting any state law claims in this case; his sole claim is

based upon an assertion that he has a constitutionally protected

right of access to the evidence in the Attorney General’s

possession for DNA testing.

Conclusion

A federal right to post-conviction access to biological

material directly relevant to criminal guilt or innocence, for

DNA testing purposes, does exist. It is rooted in the liberty

and due process rights protected by the Fifth and Fourteenth

Amendments. The reach and nature of that right under varying

factual circumstances have yet to be fully described. But

plaintiff’s complaint does assert facts and a legal theory in a

manner sufficient to withstand a motion to dismiss, and defendant

has not demonstrated that his claim is otherwise barred.

As plaintiff has made clear (and the court agrees), this

civil dispute ends upon submission of a testable sample to a

qualified independent laboratory for DNA testing pursuant to

currently available technology. Given the allegations of

ambiguous earlier test results, allegedly deficient testing

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procedures and reporting, significant advancements in DNA

technology capable of producing substantially more accurate and

reliable results, the gravity of the crime of conviction, and the

potential significance of the test results sought, as well as the

virtually negligible burden on the State to provide a biological

sample for testing, the State’s reticence to provide a sample is

difficult to understand on any principled or pragmatic basis. 

Certainly, New Hampshire is not overburdened with requests from

convicted persons to have biological samples subjected to valid

DNA testing procedures not available at the time of conviction. 

Providing a sample in this case for reputable testing at

plaintiff’s own expense will surely prove far less burdensome to

the State in the end than will the expenditures of time, money,

and legal resources required to resist testing (perhaps

unsuccessfully). And, further testing, as noted earlier, will

only produce scientifically valid, and perhaps useful,

information that the State has no legitimate cause to fear.

The motion to dismiss (document no. 12) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 18, 2008

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cc: Christopher M. Green, Esq.

Ian M. Dumain, Esq.

John S. G. Clifford, Esq.

Neals-Erik W. Delker, Esq.

Richard W. Head, Esq.

Nancy Smith, Esq.

John Vinson, NH DOC-Concord

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