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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA


NEWTON PATRIC LAMBERT,
                                                       Court of Appeals No. A-11699
                             Appellant,                Trial Court No. 1JU-10-551 CI

                      v.
                                                                OPINION
STATE OF ALASKA,

                             Appellee.                No. 2623 — November 16, 2018


               Appeal from the Superior Court, First Judicial District, Juneau,
               William B. Carey, Judge.

               Appearances: Michael Schwaiger, Assistant Public Defender,
               and Quinlan Steiner, Public Defender, Anchorage, for the
               Appellant. Elizabeth T. Burke, Assistant Attorney General,
               Office of Criminal Appeals, Anchorage, and Craig W. Richards,
               Attorney General, Juneau, for the Appellee.

               Before: Allard, Judge, Coats, Senior Judge,* and Suddock,

               Superior Court Judge. **

               [Mannheimer, Chief Judge, not participating]


               Judge ALLARD, writing for the Court and concurring
               separately.

   *
       Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska
Constitution and Administrative Rule 23(a).
   **
       Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
                   In 1982, Ann Benolken and her husband, James Benolken, were discovered
brutally murdered in their Juneau apartment. Both victims had been sexually assaulted.
                   The physical evidence at the murder scene indicated that there were at least
two perpetrators. The State charged Emmanuel Telles and nineteen-year-old Newton
Patric Lambert as principals and accomplices in the murders. The two men were tried
separately. At Lambert’s trial, the jury convicted Lambert of Ann Benolken’s murder
but acquitted him of James Benolken’s murder. Telles was acquitted of both murders at
his later trial.
                   In 2010, almost thirty years after the Benolken murders, the Alaska
legislature enacted a post-conviction DNA testing statutory scheme.1 These statutes
created a procedural mechanism through which defendants who claimed to be factually
innocent of the crimes for which they were convicted could seek DNA testing of material
physical evidence that could support their claim of innocence.2 Lambert filed an
application under the new statutes, seeking DNA testing of the only physical evidence
remaining in his case — forensic samples of the blood and semen stains found on Mr.
Benolken’s clothing. Lambert argued that DNA testing of the blood and semen samples
could lead to the identification of the true perpetrators of this double murder, thereby
raising a reasonable probability that Lambert was wrongfully convicted of Mrs.
Benolken’s murder.
                   The State opposed the proposed DNA testing and the superior court
ultimately denied Lambert’s application, concluding that Lambert had failed to show that
the proposed testing of blood and semen on Mr. Benolken’s clothing could raise a
reasonable probability that Lambert was not guilty of Mrs. Benolken’s murder, given all
of the State’s evidence that directly linked Lambert to Mrs. Benolken’s murder.

    1
        See AS 12.73.010.090.
    2
        Id.

                                               –2–                                       2623

              For the reasons explained here, we affirm this ruling.


       Factual background and prior proceedings
              On April 6, 1982, a Juneau building manager entered the apartment of
James and Ann Benolken due to a bad smell emanating from the apartment. Inside the
apartment, the manager found the Benolkens’ bodies. Both the husband and the wife had
been sexually assaulted and violently killed.
              Mrs. Benolken’s body was found naked and lying face up on a bloody
mattress on the floor. The mattress was saturated with blood, and there was blood spray
extending six to seven feet up the wall at the head of the mattress. At trial, the medical
examiner testified that Mrs. Benolken had been stabbed approximately sixty times. A
broken piece of a knife was found beneath Mrs. Benolken’s body, and strands of hair
were found between her legs. To the immediate left of Mrs. Benolken’s body was a void
in the blood spatter. The State’s expert later testified that this void was consistent with
a person kneeling next to the body during the murder. A paper bag with a liquor bottle
was found within arm’s reach of where that person would have been kneeling. A single
latent fingerprint was found on the paper bag. The fingerprint was later identified as
belonging to Lambert.
              Mr. Benolken’s body was lying next to the bloody mattress, with his body
bent over and his face lying on the mattress. Mr. Benolken’s body was still clothed, and
there was a bloodstain on his shirt and a semen stain on his pants. The medical
examination indicated that both Mr. and Mrs. Benolken had been sexually assaulted.
              The police investigated multiple suspects, but their investigation ultimately
focused on Lambert.3 In addition to Lambert’s fingerprint on the paper bag, Lambert had

   3
      As part of his request for DNA testing, Lambert provided the police reports from the
case. The police reports indicate that the police investigated a number of other suspects
                                                                            (continued...)

                                           –3–                                       2623

also been seen by a Juneau police officer near the Benolkens’ apartment on the morning
after the murders occurred. Witnesses had also seen two dark-haired men with Mr.
Benolken in the apartment building the night before the murders. (Lambert has dark
hair.)
              However, when Lambert was questioned by the police, Lambert denied
having been near the building that morning. Lambert told the police that he had been
drinking heavily the night before and had woken up in a cave under Gastineau Avenue.
He claimed to have no idea how his fingerprint could have ended up on the paper bag
found next to Mrs. Benolken’s murdered body.
              Shortly after his interview with the police, Lambert went to a friend, Gary
Moses, and asked him to lie to the police on his behalf. Moses reported this conversation
to the police, and Moses later testified to this conversation at trial. Moses’s girlfriend,
who was present during the conversation, corroborated Moses’s account.
              During the course of their investigation, the police also discovered that
Lambert had gone to a local emergency room the day after the murder with a wound on
his arm. At trial, the State introduced evidence that the wound could have either been
caused by broken glass or by the broken knife found under Mrs. Benolken. (The
Benolken apartment had a window with broken glass.) The State also introduced
evidence that Lambert had bought a new knife a few days after the murder occurred.
              The State introduced additional evidence from two jailhouse informants
who testified that Lambert had confessed to them while he was in jail following his arrest
on the murder charges. The first jailhouse informant, Robert Ewers, was housed with


   3
       (...continued)
including two men who allegedly confessed to murdering and raping the Benolkens, a man
who allegedly confessed to “two homicides last night” the day after the bodies were
discovered, various local drug dealers, and a Vietnam veteran who was implicated in the
murders by an FBI informant.

                                           –4–                                       2623

Lambert at Ketchikan Correctional Center. Ewers testified that Lambert confessed to
stabbing Mrs. Benolken while his co-defendant, Emannuel Telles, killed Mr. Benolken.
Ewers also testified that Lambert said that he had thrown the knife he used to kill Mrs.
Benolken in the water.
              The second jailhouse informant, Jeff Bowen, was housed with Lambert at
Lemon Creek Correctional Center. Bowen testified that Lambert confessed to stabbing
and raping Mrs. Benolken while Telles raped and killed Mr. Benolken. According to
Bowen, Lambert said that he stabbed Mrs. Benolken to make her stop screaming while
he raped her. Bowen also testified that Lambert told him that he threw the knife in the
channel after the murders. (The Juneau police officer who saw Lambert near the
Benolkens’ apartment building on the morning of the murder testified that Lambert was
in the general area where Lambert told Bower he threw the knife into the channel.)
              Lastly, the State introduced the testimony of Michael Malone, an FBI expert
on microscopic comparative hair analysis. Malone testified that, in his expert opinion,
the strands of hair found between Mrs. Benolken’s legs came from an Alaska Native and
the hair visually “matched” sample hairs taken from Lambert, who is Alaska Native.
According to Malone, the visual match meant that there was only a one-in-five thousand
chance that the strands of hair did not belong to Lambert.
              (We note that the reliability of this expert testimony is seriously in dispute.
Since the advent of DNA testing, microscopic comparative hair analysis has come under
increased scrutiny, and there is now significant doubt as to its scientific reliability.4

   4
       See Spencer S. Hsu, FBI admits flaws in hair analysis over decades, THE
WASHINGTON POST, (April 18, 2015), https://www.washingtonpost.com/local/crime/fbi­
overstated-forensic-hair-matches-in-nearly-all-criminal-trials-for-decades/2015/04/18 (“The
Justice Department and FBI have formally acknowledged that nearly every examiner in an
elite FBI forensic unit gave flawed testimony in almost all trials in which they offered
evidence against criminal defendants over more than a two-decade period before 2000.”);
                                                                              (continued...)

                                           –5–                                         2623

Agent Malone’s expert testimony has been discredited in other cases, and there has been
at least one case in which a defendant who was convicted based on Agent Malone’s
testimony has since been exonerated by DNA testing.5 According to the record, Lambert
is litigating the reliability of Agent Malone’s testimony separately and that issue is not
currently before us in this appeal.)
              Lambert testified in his own defense at trial. In his trial testimony, Lambert
admitted that he lied to the police about his whereabouts on the night of the murder, and
he admitted that he was at the Benolkens’ apartment when the Benolkens were murdered.
Lambert testified that he had ingested cocaine, marijuana, amphetamines, LSD, and
alcohol that night, and that he had a very limited memory of what had occurred. Lambert
recalled having a seizure, seeing “red flashes,” waking up in the Benolkens’ bathtub, and
discovering their murdered bodies in the living room. Lambert denied any involvement
in the murders, although he testified that “[a]t one point [he] thought [he] might have
done it.”




   4
        (...continued)
see, e.g., Pitts v. State, 501 S.W.3d 803, 804-06 (Ark. 2016) (permitting defendant to seek
relief via a writ of error coram nobis after determining that the tainted testimony of Malone
was material to the defendant’s conviction); Horstman v. State, 530 So.2d 368, 370 (Fla.
App. Dist. 1988) (holding that the court does “not share Mr. Malone’s conviction in the
infallibility of hair comparison evidence. Thus, we cannot uphold a conviction dependent
on such evidence.”).
   5
        See, e.g., Pitts, 501 S.W.3d at 804-06; Horstman, 530 So.2d at 370; see also Geoff
Earle, Discredited ex-FBI agent hired back as a private contractor years later, New York
Post, (July 21, 2014), https://nypost.com/2014/07/21/discredited-ex-fbi-agent-hired-back-as­
a-private-contractor-years-later/ (“Malone’s criminal forensics work has come under heavy
scrutiny by investigators — including his involvement in a case that sent former DC resident
Donald Gates to prison for 28 years for a murder he didn’t commit.”).


                                            –6–                                        2623

             During closing arguments, the State argued it had proven, beyond a
reasonable doubt, that Lambert had killed Mrs. Benolken and had aided and abetted
another person — either Telles or someone else — in killing Mr. Benolken. Lambert’s
attorney argued that the State had failed to prove beyond a reasonable doubt that Lambert
was anything other than an innocent bystander to a brutal double murder committed by
any number of other people.
             After deliberating for two days, the jury convicted Lambert of first-degree
murder for the intentional killing of Mrs. Benolken. However, the jury acquitted
Lambert of killing Mr. Benolken. Lambert was sentenced to 99 years to serve.
             Lambert’s co-defendant, Emmanuel Telles, was later tried for the murders
of Mr. and Mrs. Benolken at a separate trial. The jury acquitted Telles of both murders.
A few years after these acquittals, Telles died.
             Lambert appealed his conviction for Mrs. Benolken’s murder to this Court.
We affirmed Lambert’s conviction and his sentence in an unpublished memorandum
decision.6


       The enactment of Alaska’s post-conviction DNA testing statutory scheme
             In 2010, almost thirty years after the Benolken murders, the Alaska
legislature enacted AS 12.73, Alaska’s post-conviction DNA testing statutory scheme.
Under AS 12.73.010, a person convicted of a felony crime against a person under
AS 11.41 may apply to the superior court for an order for DNA testing of physical
evidence in their case.7 The application must be filed in the court that entered the



   6
      See Lambert v. State, 1985 WL 1078006, at *7 (Alaska App. Dec. 26, 1985)
(unpublished).
   7
       AS 12.73.010(a).


                                          –7–                                      2623

judgment of conviction, and a copy must be sent to the prosecuting authority responsible
for obtaining the conviction.8
              An application filed under AS 12.73.010 must specifically identify the
evidence sought to be tested,9 and it must include facts from which the court can make
the findings required under AS 12.73.020.10 The application must include, inter alia, an
affidavit in which the defendant swears under oath that he or she is factually innocent of
the crime for which they were convicted — i.e., the person must swear under oath that
they did not commit the crime for which they were convicted, nor did they commit any
lesser included offense, solicit another person to commit the crime, or aid or abet another
person in planning or committing the crime.11
              Alaska Statute 12.73.020(7) requires that the defendant “identify a theory
of defense that would establish the [defendant’s] innocence.”12 Unlike its federal
counterpart, Alaska’s post-conviction DNA testing statute does not require this theory
of defense to be consistent with the defense that was raised at trial.13




   8
        Id.
   9
        AS 12.73.010(b).
   10
        AS 12.73.020(1)-(11).
   11
        AS 12.73.010(b)(1)(A)-(B).
   12
        AS 12.73.020(7).
   13
       See Minutes of House Finance Comm., Senate Bill 110, at 2:16-2:21 (April 12, 2010)
(amending the proposed bill to eliminate this consistency requirement on the ground that a
factually innocent defendant should not be precluded as a matter of law from seeking DNA
testing that could establish his innocence based on the strategic decisions that his defense
attorney may have made at trial — decisions over which the defendant did not exercise direct
control).


                                           –8–                                        2623

              Alaska Statute 12.73.020(9) also requires the defendant to show, by a
preponderance of the evidence, that:
              [t]he proposed DNA testing of the specific evidence may
              produce new material evidence that would
                    (A) support the theory of defense described in
              [AS 12.73.020(7)]; and
                    (B) raise a reasonable probability that the applicant did
              not commit the offense.14
              Alaska Statute 12.73.020(7) and AS 12.73.020(9) work in concert and
essentially require the defendant to explain two things: (1) how the proposed DNA
testing could produce evidence that would be materially relevant to the defendant’s guilt
or innocence; and (2) why the DNA results, if favorable to the claim of innocence, would
raise “a reasonable probability” that the jury would find reasonable doubt in this case
where previously it had found none.


        Lambert’s application
              Prior to the enactment of AS 12.73, Lambert filed an application for post-
conviction relief alleging “newly discovered evidence” regarding the unreliability of
Agent Malone’s comparative hair analysis and seeking DNA testing of the hairs used in
that analysis, as well as DNA testing of any other physical evidence still remaining from
the case. After the new statutory scheme went into effect, Lambert’s request for DNA
testing was converted into an application for post-conviction relief under AS 12.73. In
support of his application, Lambert submitted an affidavit attesting that he was factually
innocent of Mrs. Benolken’s murder. Lambert also requested discovery on whether there




   14
        AS 12.73.020(9).


                                           –9–                                      2623

was any physical evidence still remaining in his case that could be tested. In response,
the State provided documentation establishing that the evidence no longer existed.
              Lambert’s attorney continued to investigate what had happened to the
evidence that had been sent to outside agencies for testing. Although most of this
evidence had also been destroyed, Lambert’s attorney discovered that a private crime
laboratory in California still had physical evidence from the murders. This evidence
consisted of blood and semen samples taken from stains on Mr. Benolken’s clothing.
These samples had been sent to the California laboratory at the request of Telles’s
attorney who had apparently considered having them tested. Although this testing had
not occurred, the laboratory had still preserved the samples and they were therefore
available for DNA testing.
              Lambert filed a theory of defense, requesting DNA testing of the blood and
semen samples. Lambert argued that the blood and semen samples should be tested to
determine if the DNA belonged to James Benolken, Ann Benolken, Newton Lambert,
or Emmanuel Telles. Lambert asserted that if the DNA results excluded Lambert, Telles,
and the victims, then the results would support his theory of innocence — i.e., the results
would be consistent with his claim that two other persons (who were not Lambert or
Telles) had killed the Benolkens. Conversely, if the blood and semen were determined
to belong to the victims, Lambert, and/or Telles, then these results would be consistent
with the State’s theory of prosecution and could potentially confirm Lambert and/or
Telles’s guilt.
              Lambert also asserted that testing the blood and semen could yield two
different DNA profiles. Lambert posited that the semen could have come from the first
man who raped and killed Mr. Benolken, while the blood could have come from the
second man who killed Mrs. Benolken — the theory being that the second man injured




                                          – 10 –                                     2623

himself while stabbing Mrs. Benolken and then transferred his own blood onto Mr.
Benolken’s clothing when he assisted the first man in subduing Mr. Benolken.
              Lambert also argued that if the DNA results excluded Lambert, Telles, and
the victims as possible sources of the blood and semen, the results could be run through
the national DNA database (CODIS15), which could lead to the identification and future
prosecution of the true perpetrators of this double homicide.
              The State opposed any DNA testing of the blood and semen samples. The
State’s initial concern was that the evidence had been contaminated.16 The court held an
evidentiary hearing on these concerns and ultimately concluded that it would not deny
the proposed testing on these grounds alone.
              The State also argued that Lambert had failed to meet the statutory
requirements under AS 12.73.020(7). The State argued, in particular, that Lambert had
failed to show how the proposed DNA testing would actually establish his innocence for
purposes of AS 12.73.020(7).17 The State also argued that Lambert was required to meet
the three-part test articulated by this Court in Osborne v. State, and to show that the DNA
testing would be conclusive on the issue of perpetrator identity.18



   15
        CODIS is the generic term used to describe the FBI’s program of support for criminal
justice DNA databases as well as the software used to run these databases. See
https://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet (last
visited Nov. 7, 2018).
   16
       See AS 12.73.020(5) (requiring court to find that “the evidence to be tested has been
subject to a chain of custody and retained under conditions that ensure that the evidence has
not been substituted, contaminated, or altered in any manner material to the proposed DNA
testing”).
   17
        See AS 12.73.020(7).
   18
        Osborne v. State, 110 P.3d 986 (Alaska App. 2005).


                                           – 11 –                                      2623

               In addition, the State argued that Lambert had failed to show how the
identification of two previously unidentified perpetrators based on evidence from Mr.
Benolken’s clothing would materially undermine the State’s evidence linking Lambert
to Mrs. Benolken’s murder given the strength of that evidence.
               The superior court agreed with the State that Lambert had failed to make
an adequate showing under AS 12.73.020(7). Applying Osborne, the court found that
Lambert failed to show that the DNA testing could conclusively establish his
innocence.19 The court also separately ruled that Lambert had failed to satisfy the
statutory requirements under AS 12.73.020(9). The court concluded that, given the
weight of the evidence against Lambert, the DNA results, even if favorable, would not
raise a reasonable probability that Lambert was not guilty of killing Mrs. Benolken. The
court therefore denied Lambert’s application on these two grounds.
               This appeal now follows.


        The superior court erred in applying Osborne to Lambert’s application
               On appeal, Lambert argues that the superior court misconstrued
AS 12.73.020(7) and the court held Lambert to a higher standard than the statutory
provision requires. Lambert also argues that the superior court erred when it structured
its analysis around Osborne v. State.20
               We agree with Lambert that the superior court’s analysis of AS 12.73.­
020(7) is flawed. We also agree that the superior court’s reliance on the three-pronged
test in Osborne was error.




   19
        See id. at 995.

   20
        Osborne v. State, 110 P.3d 986, 995 (Alaska App. 2005).



                                          – 12 –                                  2623

                In the first part of its order, the superior court interpreted AS 12.73.020(7)
as requiring Lambert to prove that the proposed DNA testing would conclusively
establish his innocence. But Lambert’s burden in relation to AS 12.73.020(7) was far
more modest. Alaska Statute 12.73.020(7) requires the defendant to “identif[y] a theory
of defense that will establish the defendant’s innocence,” but it does not require the
defendant to prove that this theory is true or that the DNA testing will prove the theory
true.21
                As the State acknowledges on appeal, the defendant bears only a burden of
pleading with regard to AS 12.73.020(7) — that is, the defendant is only required to
identify his or her theory of innocence. Alaska Statute 12.73.020(9)(A) also requires the
defendant to show how the proposed DNA testing could produce new material evidence
that would “support” — i.e., be consistent with — that theory of innocence. But neither
statutory provision requires the defendant to prove that the DNA testing, if favorable,
will “establish” his or her innocence or that the DNA testing will “conclusively” exclude
the defendant as a possible perpetrator.
                Instead of recognizing the limited showing required under AS 12.73.020(7)
and AS 12.73.020(9)(A), the superior court appears to have conflated the statutory
requirements with the three-pronged constitutionally based test we articulated in
Osborne.22 As Lambert correctly points out, Osborne was decided prior to the enactment
of AS 12.73, and our decision in that case has been largely superseded by that
subsequent legislation.
                The question we faced in Osborne was whether, in the absence of any
statutory right to post-conviction DNA testing, there was a free-standing constitutional


   21
          AS 12.73.020(7) (emphasis added).
   22
          Osborne, 110 P.3d at 995.


                                            – 13 –                                      2623

right to post-conviction DNA testing in cases involving claims of actual innocence.23 We
concluded that a defendant might have such a due process right if the defendant could
meet the following three-part test: (1) his conviction rested primarily on eyewitness
identification evidence; (2) there was a demonstrable doubt concerning the identification
of the defendant as the perpetrator; and (3) scientific testing of the available evidence
would likely be conclusive on this issue.24
              When the Alaska legislature enacted AS 12.73, it did not adopt this three-
part test. Instead, the legislature modeled Alaska’s post-conviction statutory scheme
after the federal Innocence Protection Act.25 Osborne is therefore of marginal relevance
to applications for post-conviction DNA testing and likely to simply muddy the analysis
of claims brought under AS 12.73, as it did here.


        The superior court did not err when it concluded that the DNA testing, even
        if favorable, would not raise a reasonable probability that the outcome of
        Lambert’s trial would be different
              To fulfill the statutory requirement under AS 12.73.020(9)(B), a defendant
must show that the proposed DNA testing may produce new material evidence that
would “raise a reasonable probability that the applicant did not commit the offense.”
Importantly, the defendant need not show any likelihood that the DNA results will
actually be favorable to his claim of innocence. Instead, he need only show that,
assuming the results are as favorable as the defendant has shown they could be, these



   23
        Id.
   24
      Id.; see Osborne v. State, 163 P.3d 973, 982 (Alaska App. 2007) (holding Osborne
was unable to meet this three-part test).
   25
        Compare 18 U.S.C. § 3600 (2004) et seq. with AS 12.73.010-090.


                                          – 14 –                                      2623
favorable results would raise “a reasonable probability” that the outcome of the
defendant’s trial would be different.26
              The reasonable probability analysis requires the trial court to look at the
trial record as a whole and to assess the potential evidentiary significance of these
favorable DNA results in light of all the known evidence in the case.27 This fact-
intensive inquiry is probably best made by the trial judge who presided over the original
trial.28 In Lambert’s case, however, the original trial judge is no longer available.
              The term “reasonable probability” has a specialized legal meaning.29
Reasonable probability means “a probability sufficient to undermine confidence in the




   26
       See State v. Armour, 141 A.3d 381, 391 (N.J. App. 2016) (“Given the difficulty of
anticipating the outcome of a DNA (or fingerprint) test, ‘the trial court should postulate
whatever realistically possible test results would be most favorable to [the] defendant’”);
State v. Peterson, 836 A.2d 821, 827 (N.J. App. 2003) (emphasizing that a court may not
deny a motion for DNA testing because the court finds it unlikely that DNA testing would
produce favorable results; instead the court has to consider the evidential significance of
whatever “favorable” DNA test results could be obtained).
   27
       See State v. Marra, 988 A.2d 865, 874 (Conn. 2010) (reasonable probability analysis
requires court to take into account totality of evidence adduced at original trial in order to
determine whether absence of exculpatory DNA evidence undermines confidence in verdict).
   28
       See United States v. Jordan, 594 F.3d 1265, 1269 (10th Cir. 2010) (noting that trial
judge considering a motion for post-conviction DNA testing “is most often the judge who
presided over the defendant’s trial,” and that this judge is “in a unique position to assess the
evidence against the defendant and to evaluate whether new DNA testing may produce
evidence which would raise a reasonable probability that [the defendant] did not commit the
offense”).
   29
       See AS 01.10.040 (declaring that words and phrases “that have acquired a peculiar
and appropriate meaning, whether by legislative definition or [judicial construction] shall be
construed according to the peculiar and appropriate meaning”).


                                            – 15 –                                        2623

defendant’s conviction.”30 A“reasonable probability” is “a reasonable chance and not
merely an abstract possibility.”31 Notably, the reasonable probability standard does not
require a showing of more likely than not.32 Thus, a defendant need not show that the
favorable DNA test results would likely result in an acquittal. Instead, he is only
required to show a “reasonable chance, not an abstract possibility” that the DNA test
results, if favorable, would create a reasonable doubt where none had previously been
found to exist.33




   30
        Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Hood v. United States,
28 A.3d 553, 564 (D.C. App. 2011) (applying Strickland “reasonable probability” standard
to claim brought under federal Innocence Protection Act); Richardson v. Superior Court, 183
P.3d 1199, 1205 (Cal. 2008) (applying Strickland reasonable probability standard when
construing comparable post-conviction DNA testing statute); State v. Dupigney, 988 A.2d
851, 859 (Conn. 2010) (same); In re Towne, 86 A.3d 429, 432 (Vt. 2013) (same).
   31
        Richardson, 183 P.3d at 1205.
   32
        See Kyles v. Whitley, 514 U.S. 419, 434 (1995); Richardson, 183 P.3d at 1205
(emphasizing that that a “reasonable probability” for purposes of obtaining post-conviction
DNA testing “does not mean more likely than not”) (citations omitted); State v. Cote, 21
A.3d 589, 593 (Conn. App. 2011) (“The question is not whether the defendant would more
likely than not have received a different verdict with the evidence, but whether in its absence
he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”).
See generally Jed Handelsman Shugerman, Unreasonable Probability of Error, 111 Yale L.
J. 435, 440 (2001) (explaining that courts have misinterpreted the “reasonable probability
standard” to mean “more likely than not” when in fact the burden is less than that).
   33
       Strickland, 466 U.S. at 694; Richardson, 183 P.3d at 1205; In re Towne, 86 A.3d at
432 (“A petitioner must demonstrate that the evidence ‘creates a reasonable doubt that did
not otherwise exist.’”) (internal citations omitted).


                                            – 16 –                                       2623

               This is the same standard that is used to evaluate the prejudice prong of an
ineffective assistance of counsel claim in federal law under Strickland v. Washington.34
However, it is a higher standard than is used to evaluate the prejudice prong of an
ineffective assistance claim in Alaska law under Risher v. State.35 Under Risher, a
defendant is required to show only that there is “a reasonable possibility” that the
outcome of his trial would have been different but for his attorney’s deficient
performance.36 This is a “less demanding” standard than the reasonable probability
standard required here.37
               The relative strength of the State’s evidence and the importance of the
evidence to be tested has clear import in analyzing whether the reasonable probability
standard has been met in a given case.38 Thus, in cases where the evidence to be tested
could be dispositive on the question of the defendant’s guilt or innocence, the strength
of the State’s evidence will be largely irrelevant. However, in cases where the evidence
to be tested is only tangentially relevant to the defendant’s guilt or innocence, the relative
strength or weaknesses in the State’s evidence will become more determinative of
whether the standard has been met.


   34
        Strickland, 466 U.S. at 694.
   35
        Risher v. State, 523 P.2d 421 (Alaska 1974).
   36
        Id. at 425.
   37
       State v. Jones, 759 P.2d 558, 572 (Alaska App. 1988) (comparing the “reasonable
possibility” standard to the “harmless beyond a reasonable doubt” standard used for
constitutional errors under Chapman, with the critical distinction being that the defendant
(not the State) bears the burden of showing the prejudice under this standard).
   38
        See In re Towne, 86 A.3d at 435-36; see also Strickland, 466 U.S. at 696 (“[A] verdict
or conclusion only weakly supported by the record is more likely to have been affected by
errors than one with overwhelming record support”).


                                           – 17 –                                       2623

             One of the problems that Lambert faces in the current case is that the
evidence he seeks to test is blood and semen found on Mr. Benolken’s clothing, but
Lambert was not convicted of Mr. Benolken’s murder. The jury convicted Lambert only
of Mrs. Benolken’s murder, and the jury rejected the State’s theory that Lambert had
assisted another person or persons in killing Mr. Benolken. Thus, demonstrating that
Lambert’s DNA was not on Mr. Benolken’s clothing would not directly undermine
confidence in the jury’s verdict.
             Demonstrating that the DNA belonged to two unknown men (i.e., not
Lambert, Telles, or either of the victims) could potentially undermine confidence in the
jury’s verdict, but the significance of such a finding depends on the weight of the
evidence directly linking Lambert to Mrs. Benolken’s murder. Although the State’s
primary theory of prosecution was that only two men (Lambert and Telles) were
involved in the murders, the forensic evidence suggested that more than two people may
have been involved. This was a particularly brutal and violent double homicide that
involved the murder and rape of two victims. In his arguments to the jury, the prosecutor
emphasized that the person who killed Mr. Benolken — whether Telles or someone else
— could not have done it alone. Lambert’s defense attorney similarly argued that there
could have been any number of people involved in the murders.
             The question therefore becomes, if the DNA testing showed that there were
two additional perpetrators who were involved in killing Mr. Benolken (neither of whom
was Lambert and Telles), would these favorable test results raise a reasonable probability
that Lambert was not involved in killing Mrs. Benolken? As the superior court noted,
the “biggest problem” that Lambert faced in making this showing was that Lambert
himself had admitted to being present at the Benolken apartment when the murders
occurred. Lambert also admitted that “at one point [he] thought [he] might have done



                                          – 18 –                                    2623

it.” As the superior court also emphasized, the State’s evidence linking Lambert to Mrs.
Benolken’s murder was strong. This evidence included not only Lambert’s own
admissions at trial, but also Lambert’s out-of-court confessions to two different inmates
in two different correctional facilities. The State’s evidence also included (1) Lambert’s
fingerprint on a paper bag next to Mrs. Benolken’s body and within arm’s reach of where
the person stabbing Mrs. Benolken would have been situated given the blood splatter;
(2) the broken knife found under Mrs. Benolken’s body and Lambert’s purchase of a
new knife a few days after the murders; (3) Lambert’s visit to the emergency room to
treat a wound that could have been caused by broken glass or the broken knife; and (4)
Lambert’s various lies to the police and his efforts to get his friends to lie to the police
on his behalf.
              On appeal, Lambert argues that the superior court erred in assuming that
this evidence could not be controverted through other means. Lambert argues, in
particular, that the superior court erred when it assumed that Lambert’s trial testimony
was true. According to Lambert, the superior court should have questioned the veracity
of Lambert’s trial testimony because his admissions bore all of the hallmarks of a false
confession, in that they were admissions by a young defendant who was confronted with
seemingly incontrovertible, but perhaps false, physical evidence — i.e., Agent Malone’s
hair comparison analysis.
              But Lambert never argued that his trial testimony was false in his
application for post-conviction DNA testing. Nor did he ever claim that he was not
present in the apartment at the time the murders occurred. He also did not refute any of
the other evidence against him (other than asserting Agent Malone’s general lack of
reliability as an expert). Given all this, we conclude that the superior court did not err
when it determined that Lambert failed to show that the proposed DNA testing, if



                                          – 19 –                                      2623

favorable, would raise a reasonable probability that the outcome of trial would be
different — i.e., a reasonable chance, not an abstract possibility, that reasonable doubt
regarding Lambert’s guilt would be found where none had previously existed.
Accordingly, we uphold the superior court’s denial of Lambert’s application for post-
conviction DNA testing.


      Conclusion
             The judgment of the superior court is AFFIRMED.




                                         – 20 –                                    2623

Judge ALLARD, concurring separately.
              I write separately to point out that there is nothing preventing the State from
DNA testing the evidence in this case for its own reasons. As the United States Supreme
Court noted “DNA testing has an unparalleled ability both to exonerate the wrongly
convicted and to identify the guilty. It has the potential to significantly improve both the
criminal justice system and police investigative practices.”1 Here, the jury’s verdicts
from the two defendants’ trials have left the public with many unanswered questions
about these brutal murders. How many people were involved in these murders? Was
Telles involved? Was Lambert involved in killing Mr. Benolken as well as Mrs.
Benolken? Testing the blood and semen from Mr. Benolken’s clothing has the potential
to provide answers to at least some of these questions. Moreover, if the results are
matched to DNA profiles in the national FBI database CODIS, the testing could
potentially lead to the identification and future prosecution of at least one (if not two)
previously unknown perpetrator(s) from this thirty-year-old double homicide.
              It is also worth noting that DNA testing is relatively inexpensive, generally
costing no more than a few thousand dollars. In contrast, the costs of fully litigating the
requirements under AS 12.73 can be quite high, consuming a significant amount of
attorney, judge, and court time — most of which comes from public funds. Partially for
this reason, the Alaska legislature has recognized the benefits of proceeding with the
initial testing outside the formal requirements of AS 12.73 in certain circumstances.
Alaska Statute 12.73.060 therefore provides:
              The provisions of this chapter do not prohibit an applicant
              and the prosecuting authority from agreeing to conduct
              post-conviction DNA testing without the person’s filing an
              application under this chapter. The parties may also stipulate

   1
       Dist. Attorney’s Office for Third Dist. v. Osborne, 557 U.S. 52, 55 (2009).


                                           – 21 –                                      2623

              to the payment of costs for the DNA testing and other costs
              associated with the terms of the agreement.
One advantage of this approach is that the parties are not forced to speculate as to the
universe of potentially exculpatory results. Instead, they can streamline the litigation and
focus on the actual known results. Moreover, in cases where the specific evidence to be
tested is particularly material to the question of guilt or innocence, there will likely be
times when the DNA testing simply confirms the defendant’s guilt, thereby obviating the
need for costly litigation altogether.




                                          – 22 –                                      2623

