Petition for Writ of Certiorari — Jason Smith, Petitioner v. Arizona

No. _____

In the Supreme Court of the United States

_______________

JASON SMITH,

v.

Petitioner,

STATE OF ARIZONA,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of Arizona, Division One

___________________

PETITION FOR A WRIT OF CERTIORARI

___________________

Diane M. Johnsen

PERKINS COIE LLP

2901 North Central Ave

Suite 2000

Phoenix, AZ 85012

Robert Trebilcock

Deputy Public Defender

OFFICE OF YUMA COUNTY

PUBLIC DEFENDER

168 South 2nd Ave

Yuma, AZ 85364

Hari Santhanam

Counsel of Record

PERKINS COIE LLP

110 North Wacker Dr

Suite 3400

Chicago, IL 60606

(312) 324-8447

HSanthanam@perkinscoie.com

Counsel for Petitioner

QUESTION PRESENTED

Whether the Confrontation Clause of the Sixth

Amendment permits the prosecution in a criminal trial to

present testimony by a substitute expert conveying the

testimonial statements of a nontestifying forensic analyst,

on the grounds that (a) the testifying expert offers some

independent opinion and the analyst’s statements are

offered not for their truth but to explain the expert’s

opinion, and (b) the defendant did not independently seek

to subpoena the analyst.

(i)



ii

PARTIES TO THE PROCEEDING

Petitioner is Jason Smith. Respondent is the State of

Arizona. No party is a corporation.

RELATED PROCEEDINGS

Superior Court of Arizona, Yuma County:

State v. Smith, No. S1400CR201901251 (Oct. 8, 2021)

(entering judgment of conviction after jury trial)

Arizona Court of Appeals, Division One:

State v. Smith, No. 1 CA-CR 21-0451 (July 14, 2022)

(affirming trial court judgment)

Supreme Court of Arizona:

State v. Smith, No. CR-22-0202-PR (Jan. 6, 2023)

(denying discretionary review)

iii

TABLE OF CONTENTS

Page

Opinions below ...................................................................... 1

Jurisdiction ............................................................................ 1

Relevant constitutional provision and

rule of evidence ............................................................... 2

Introduction........................................................................... 2

Statement .............................................................................. 5

Reasons for granting the petition .................................... 12

A. Lower courts are deeply divided over the

viability of the not-for-the-truth rationale

for admitting substitute expert testimony

and whether a defendant has a burden to

subpoena nontestifying analysts under the

Confrontation Clause. ............................................ 12

B. The rationales applied by the Arizona

Court of Appeals and similarly applied by

other lower courts do not comport with,

and threaten to swallow, the Confrontation

Clause....................................................................... 20

C. The question presented is an important

and recurring one, and this case presents

the ideal vehicle for addressing it. ....................... 24

Conclusion ........................................................................... 27



iv

APPENDIX CONTENTS

Page

Appendix A: Arizona Supreme Court’s Order

Denying Discretionary Review (Jan. 6, 2023) ......... 1a

Appendix B: Court of Appeals of Arizona,

Division One, Memorandum Decision

Affirming Conviction (July 14, 2022) ........................ 2a

Appendix C: Excerpt of Trial Court Judgment

(Oct. 8, 2021) ............................................................... 17a

Appendix D: Trial Court Order Denying Motion

for New Trial on Confrontation Clause

Grounds (Sept. 22, 2021) ........................................... 24a

Appendix E: Excerpt of Motion for New Trial

Based on Confrontation Clause Grounds

(Sept. 10, 2021) ........................................................... 25a

Appendix F: State’s Amendment to Final Pre-Trial

Conference Statement (Aug. 11, 2021) ................... 26a

Appendix G: Excerpt of Transcript of Proceedings

Before Trial Court ..................................................... 27a

Appendix H: Scientific Examination Report of

Arizona Department of Public Safety (DPS)

Analyst Elizabeth Rast (Feb. 11, 2021) .................. 85a

Appendix I: Laboratory Notes of DPS Analyst

Elizabeth Rast (Feb. 11, 2021) ................................ 88a

Appendix J: Non-DPS Agency Request for Scientific

Examination (Feb. 1, 2021) .................................... 127a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Bullcoming v. New Mexico,

564 U.S. 647 (2011) ....................................... 2, 9, 14, 22, 26

Commonwealth v. Jones,

37 N.E.3d 589 (Mass. 2015) ....................................... 14, 17

Commonwealth v. LaLonde,

No. 3468 EDA 2012, 2014 WL 10965225

(Pa. Super. Ct. Apr. 28, 2014) ......................................... 20

Hingle v. State,

153 So.3d 659 (Miss. 2014) ............................................... 18

Leidig v. State,

256 A.3d 870 (Md. 2021) ............................................. 14, 16

Marks v. United States,

430 U.S. 188 (1977) ........................................................... 18

Martin v. State,

60 A.3d 1100 (Del. 2013) ............................................ 14, 16

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) ........................................... 3, 14, 19, 23

People v. Fackelman,

802 N.W.2d 552 (Mich. 2011) .......................................... 19

People v. Sanchez,

374 P.3d 320 (Cal. 2016) ................................................... 14

Raley v. Ohio,

360 U.S. 423 (1959) ........................................................... 25

State ex rel. Montgomery v. Karp,

336 P.3d 753 (Ariz. Ct. App. 2014).................. 5, 11, 17, 20

State v. Bowman,

337 S.W.3d 679 (Mo. 2011) .............................................. 24

State v. Brewington,

743 S.E.2d 626 (N.C. 2013) .............................................. 18

State v. Garcia,

No. 33,756, 2014 WL 2933211 (N.M. June 26, 2014) .... 20

vi

State v. Griep,

863 N.W.2d 567 (Wis. 2015) ............................................ 18

State v. Hutchison,

482 S.W.3d 893 (Tenn. 2016) ........................................... 18

State v. Joseph,

283 P.3d 27 (Ariz. 2012) ............................................. 11, 17

State v. Lui,

315 P.3d 493 (Wash. 2014) ............................................... 19

State v. McLeod,

66 A.3d 1221 (N.H. 2013) ................................................. 18

State v. Mercier,

87 A.3d 700 (Me. 2014) ..................................................... 18

State v. Sykes,

204 A.3d 1282 (Me. 2019) ................................................. 19

State v. Walker,

212 A.3d 1244 (Conn. 2019) ................................. 12, 14, 16

Stuart v. Alabama,

139 S. Ct. 36 (2018) ....................................................... 3, 12

United States v. James,

712 F.3d 79 (2d Cir. 2013) ................................................ 18

United States v. Macias,

789 F.3d 1011 (9th Cir. 2015) .......................................... 19

United States v. Murray,

540 F. App’x 918 (11th Cir. 2013) ................................... 18

United States v. Pablo,

696 F.3d 1280 (10th Cir. 2012) ........................................ 19

United States v. Shanton,

513 F. App’x 265 (4th Cir. 2013) ..................................... 19

United States v. Turner,

709 F.3d 1187 (7th Cir. 2013) .......................................... 12

United States v. Walker,

673 F.3d 649 (7th Cir. 2012) ............................................ 19

Williams v. Illinois,

567 U.S. 50 (2012) ............ 2, 3, 5, 11, 12, 14–19, 21, 24, 25

vii

Young v. United States,

63 A.3d 1033 (D.C. 2013) ...................................... 14, 15, 21

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. VI ........... 1–5, 12, 13, 17, 19–21, 23, 25

RULES

Arizona Rule of Evidence 703 .......................... 2, 3, 4, 11, 13

OTHER AUTHORITIES

Brief of Amicus Curiae The Innocence Network,

Bullcoming v. New Mexico, 564 U.S. 647 (2011) (No. 0910876), 2010 WL 5043100 ................................................ 24

D. Kaye et al., THE NEW WIGMORE: EXPERT EVIDENCE

(2d ed. 2011) ...................................................................... 21

In the Supreme Court of the United States

_______________

JASON SMITH,

v.

Petitioner,

STATE OF ARIZONA,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of Arizona, Division One

___________________

PETITION FOR A WRIT OF CERTIORARI

____________

Jason Smith respectfully petitions for a writ of certiorari to review the judgment of the Court of Appeals of the

State of Arizona, Division One.

OPINIONS BELOW

The opinion of the Arizona Court of Appeals affirming

petitioner’s conviction (App., infra, 2a–16a) is unreported

but is available at 2022 WL 2734269. The decision of the

Arizona Supreme Court denying discretionary review

(App., infra, 1a) is unreported. The Superior Court’s oral

rulings admitting trial testimony by the State’s expert and

rejecting petitioner’s arguments that the testimony violated his rights under the Confrontation Clause (App., infra, 41a–45a, 55a–62a), and its order denying petitioner’s

motion for a new trial (App., infra, 24a), are unreported.

JURISDICTION

The Arizona Court of Appeals issued a final judgment

affirming petitioner’s conviction on July 14, 2022. App.,

infra, 2a–16a. The Arizona Supreme Court denied

(1)

2

discretionary review on January 6, 2023. App., infra, 1a.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

RELEVANT CONSTITUTIONAL PROVISION

AND RULE OF EVIDENCE

The Sixth Amendment to the Constitution of the

United States provides, in relevant part, that: “In all

criminal prosecutions, the accused shall enjoy the right …

to be confronted with the witnesses against him.”

Arizona Rule of Evidence 703 provides that:

An expert may base an opinion on facts or data in the

case that the expert has been made aware of or

personally observed. If experts in the particular field

would reasonably rely on those kinds of facts or data

in forming an opinion on the subject, they need not be

admissible for the opinion to be admitted. But if the

facts or data would otherwise be inadmissible, the

proponent of the opinion may disclose them to the jury

only if their probative value in helping the jury

evaluate the opinion substantially outweighs their

prejudicial effect.

INTRODUCTION

This Court held in Bullcoming v. New Mexico, 564

U.S. 647 (2011), that when the prosecution in a criminal

trial introduces a forensic analyst’s certifications, the

analyst becomes a witness whom the defendant has a

Sixth Amendment right to confront—a right that is not

satisfied by cross-examining a substitute expert. Id. at

663. Shortly after Bullcoming, this Court granted review

in Williams v. Illinois, 567 U.S. 50 (2012), to address a

factual scenario left open by Bullcoming: where “an

expert witness [i]s asked for his independent opinion

about underlying testimonial reports that were not them-

3

selves admitted into evidence.” Id. at 67 (quoting Bullcoming, 564 U.S. at 673 (Sotomayor, J., concurring)). But

the result in Williams—a fractured 4-1-4 decision—

“yielded no majority and … ha[s] sown confusion in courts

across the country.” Stuart v. Alabama, 139 S. Ct. 36, 37

(2018) (Gorsuch & Sotomayor, JJ., dissenting) (collecting

cases). Now, more than a decade after Williams, state

high courts and federal courts of appeals are firmly

divided. This petition asks this Court to resolve two

aspects of this divide, each a direct result of Williams.

First, courts are divided over the viability of the

rationale posited by the Williams plurality—though

rejected by five Justices—that under Evidence Rule 703

(in its federal and various state forms), a nontestifying

analyst’s “[o]ut-of-court statements that are related by [a

testifying] expert solely for the purpose of explaining the

assumptions on which [the expert’s] opinion rests are not

offered for their truth and thus fall outside the scope of

the Confrontation Clause.” Williams, 567 U.S. at 57–58;

but see id. at 104–110 (Thomas, J., concurring) (rejecting

the not-for-the-truth rationale); id. at 125–129 (Kagan, J.,

dissenting) (same).

Second, courts are divided over the Williams

plurality’s rationale that the admission of substitute

expert testimony would “not prejudice any defendant who

really wishes to probe the reliability of the … testing done

in a particular case because those who participated in the

testing may always be subpoenaed by the defense and

questioned at trial,” 567 U.S. at 58–59—a position that a

majority of this Court rejected in Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009). See id. at 324 (holding that a defendant’s “ability to subpoena the analysts …

is no substitute for the right of confrontation”).

4

This case embodies both of these issues and underscores the need for this Court’s intervention. To prove the

drug-related charges against petitioner Jason Smith, the

State had the alleged drug evidence tested by a crime lab

analyst, Elizabeth Rast. App., infra, 5a ¶ 5; see App.,

infra, 127a. But by the time of trial, Rast was no longer

employed by the crime lab—for reasons the State has

never explained. App., infra, 41a, 45a, 53a. The State

thus called a substitute expert, Gregory Longoni, who

reviewed only Rast’s report and notes, and had not conducted or observed any of the tests at issue, nor conducted

any quality assurance of those tests. Id. at 43a–45a. And

though Longoni acknowledged it would have taken him

less than three hours to retest the evidence, the State did

not have him do so prior to trial. Id. at 53a–54a. Nonetheless, over Smith’s objections, the trial court permitted

Longoni to use Rast’s notes and report, and recount from

these documents the particular tests Rast performed on

the evidence in Smith’s case and the results she reached,

reasoning that Longoni could testify to his “independent

opinion” based on Rast’s work without violating the Confrontation Clause. Id. at 46a–49a; see also id. at 55a–62a.

The Arizona Court of Appeals affirmed and held that

Longoni’s testimony did not violate the Confrontation

Clause, even though Smith had no opportunity to crossexamine Rast. App., infra, 3a ¶ 1. Citing one of its earlier

decisions applying Arizona Rule of Evidence 703 and the

Williams plurality’s not-for-the-truth rationale, the court

reasoned that “Longoni presented his independent expert

opinions permissibly based on his review of Rast’s work”

and that an expert may “testif[y] ‘to otherwise inadmissible evidence, including the substance of a non-testifying

expert’s analysis, if such evidence forms the basis of the

expert’s opinion.’” Id. at 11a–12a ¶ 19 (quoting State ex

rel. Montgomery v. Karp, 336 P.3d 753, 757 ¶ 13 (Ariz. Ct.

5

App. 2014)). The court also invoked the Williams plurality opinion to conclude that “[h]ad Smith sought to

challenge Rast’s analysis, he could have called her to the

stand and questioned her, but he chose not to do so.” Id.

at 12a ¶ 19 (citing Williams, 567 U.S. at 58–59).

This Court should grant review to address the

confusion and divide among lower courts over the viability

of the not-for-the-truth rationale for admitting substitute

expert testimony and reaffirm that a defendant bears no

burden to subpoena the prosecution’s absent analysts

under the Confrontation Clause.

STATEMENT

1. Petitioner Jason Smith was charged with, and

pleaded not guilty to, five drug-related offenses. App.,

infra, 4a–5a ¶ 5. While Smith’s case was pending, the

State sent alleged drug evidence to a crime lab operated

by the Arizona Department of Public Safety (“DPS”) and

requested that it be tested. App., infra, 127a–128a. In its

request, the State specifically identified Smith and the

charges against him, and it informed DPS that “trial ha[d]

been set” in Smith’s case. Id. at 127a.

Elizabeth Rast, then a DPS forensic scientist,

conducted the testing. App., infra, 5a ¶ 5. To document

her work, Rast prepared typewritten notes on DPS letterhead. App., infra, 88a–107a. These notes provide the only

firsthand record of the specific analyses Rast conducted.

In her notes, Rast recorded the observations she made,

the weights she measured, the test procedures she used,

and the results she obtained, as well as her comments and

conclusions as to each evidence “item” the State submitted for testing, including Items 20A, 20B, 26, and 28 on

which the State would ultimately rely at trial. Ibid.

6

As to Items 20A and 20B, Rast stated in her notes that

she performed a chemical color test and a gas-chromatography and mass-spectrometry (“GC-MS”) test, and

concluded that the items were methamphetamine. App.,

infra, 89a–91a; see also App., infra, 38a, 46a–48a.

Similarly, as to Item 28, Rast stated in her notes that she

performed a chemical color test and a GC-MS test, and

concluded it was cannabis. App., infra, 95a–96a; see also

App., infra, 36a–38a, 48a–49a. Rast also attached to her

notes copies of the charts and graphs (chromatographs

and mass spectra) from the GM-MS tests that she

performed on Items 20A, 20B, and 28 (among others).

App., infra, 108a–126a.

As to Item 26, Rast stated in her notes that she

performed a microscopic examination and chemical color

test, and concluded that it was marijuana. App., infra,

94a; see also App., infra, 34a–36a, 41a–42a, 46a. Rast did

not perform any GC-MS analysis on Item 26. See App.,

infra, 94a.

Rast further prepared a typewritten report on DPS

letterhead in which she stated her conclusions and the

measured weight of each item, and she signed each page

of the report. App., infra, 85a–87a.

2. The State initially identified Rast as its trial

expert. App., infra, 26a. But by the time of trial, Rast

was no longer employed by DPS, for reasons that the

State has not explained. App., infra, 41a, 45a, 53a. The

State then announced that it would introduce the results

of Rast’s analyses through a “substitute” expert, DPS

forensic scientist Gregory Longoni. App., infra, 26a.

At trial, Longoni testified about his training and experience, “the general process” when “a law enforcement

agency submits suspected drugs for testing,” and the testing processes used by the DPS crime lab. App., infra,

7

32a–39a. Because Longoni was not involved in the specific

testing in Smith’s case, Smith objected when Longoni was

asked whether Rast, “[a]s a forensic scientist, would …

have done the same things that [he] would have done,” and

Smith subsequently requested a sidebar. Id. at 41a–43a.

After the sidebar, the trial court allowed Smith to voir dire

Longoni about whether he could “offer an opinion

independently.” Id. at 43a–45a. During that questioning,

Longoni testified that his opinions were based on Rast’s

report, “the notes that [Rast] took and the scientific

analysis and the analytical protocols” DPS follows. Id. at

44a. He conceded that he “never tested anything in this

case” and performed no “quality assurance” of Rast’s

analyses; indeed, he had not even spoken to Rast. Id. at

45a. Smith then renewed his objection to Longoni’s

testimony, which the trial court overruled. Ibid.

When direct examination resumed, Longoni identified

the specific tests that Rast had performed on each

evidence item, and in response to the State’s questions

asking him for his “independent opinion,” Longoni testified that the items Rast tested were “a usable quantity of

marijuana” (Item 26), “a usable quantity of methamphetamine” (Items 20A and 20B), and a “usable quantity of

cannabis” (Item 28). App., infra, 46a–49a. But because

he lacked personal knowledge of Rast’s testing, Longoni

repeatedly referred to Rast’s notes and report, and made

clear that he was recounting Rast’s statements from those

materials. For example:

Q How is Item Number 20 tested?

THE WITNESS: If I were to review the notes again

real quick, Your Honor?

THE COURT: You may.

THE WITNESS: So Item 20 was actually two items,

20A and 20B.

8

* * *

Q How -- in reviewing the records, do you know what

method was used to test Item Number 20A and 20B?

A Yes.

Q What method was used?

A A chemical color test as well as a GC-MS.

* * *

Q Was a blank run?

A Yes.

* * *

Q Did you also look at what was done to Item 28?

THE WITNESS: Again, can I refer to the report,

Your Honor?

THE COURT: You may.

THE WITNESS: Okay.

* * *

Q What kind of testing was done on Item 28?

A A chemical color test and a GC-MS.

Q And is that, again, consistent with the test you

described for testing suspected cannabis?

A Yes.

Q Did you note whether or not the policies and

practices of the lab and principles of chemistry were

followed in this case?

A Yes.

Q Were they followed?

A Yes.

9

Id. at 46a–48a. 1

Even the manner in which the State framed its

questions made clear that Longoni was drawing straight

from Rast’s notes and report:

• “From your review of the lab notes in this case, can

you tell me what scientific method was used to

analyze Item 26?” App., infra, 41a.

• “In reviewing these notes, in reviewing what was

done to the sample, the intake records, the instruments used, the chemicals used, can you form an

independent opinion about what the identity of

Item 26 is?” Id. at 42a.

• “[I]n reviewing the records, do you know what

method was used to test Item Number 20A and

20B?” Id. at 46a.

• “Can you form an independent opinion based on

your review of the records, the notes, the chemicals

used, the graphs that were made[,] on what Item

28 is?” Id. at 49a.

On cross-examination, Longoni explained that he

testifies in less than five percent of the cases in which he

is involved and that although he did not personally retest

the evidence in Smith’s case, it would have taken him less

than three hours to do so. App., infra, 53a–54a.

At the close of evidence, Smith moved for acquittal, arguing (among other things) that Longoni’s testimony was

“really not independent.” App., infra, 55a. The trial court

denied that motion and Smith’s subsequent renewed motion, in which he cited this Court’s decision in Bullcoming

Longoni similarly recounted from his “review of [Rast’s] lab notes

in this case” that Rast conducted “[a] microscopic examination and [a]

chemical color test” on Item 26. App., infra, 41a–42a.

1

10

in arguing that Longoni’s testimony violated his confrontation right. Id. at 55a–62a. The trial court reasoned that

“this case is distinguished from the Bullcoming case in

that the expert … , Mr. Longoni, testified of his own opinion as to what the nature of the substances was that w[ere]

tested, and, therefore, [his testimony] d[id] not violate the

[C]onfrontation [C]lause of the Constitution.” Id. at 62a.

In its summation, the State relied exclusively on

Longoni’s testimony to prove the identity of the alleged

drug evidence. See, e.g., App., infra, 64a (“We see a white

crystalline substance in those bags, a substance that

[Longoni] testified and told you was methamphetamine.”); id. at 65a (“[Longoni] testified and told you that

that was cannabis.”); id. at 83a (“[W]hen we talk about the

science in this case, [Longoni] told you an independent

opinion about what those drugs are.”). The State further

relied on Longoni’s recounting of Rast’s statements to establish that Rast had followed proper “policies and procedures” to test each evidence item:

[Longoni] was able to see that the policies and procedures were followed, he was able to tell how these were

tested. He told you what he would have done and saw

that that was done in this case too.

Id. at 83a.

The jury found Smith guilty of possession of

marijuana for sale and possession of methamphetamine,

cannabis, and drug paraphernalia. App., infra, 6a ¶ 7; see

also App. 17a–21a. Smith moved for a new trial based on

his confrontation objection (App., infra, 25a), and the trial

court denied the motion (App., infra, 24a).

3. The Arizona Court of Appeals affirmed Smith’s

conviction and rejected his argument that the admission

of Longoni’s testimony violated the Confrontation Clause.

App., infra, 2a–16a.

11

First, the Arizona Court of Appeals reasoned that the

State did not “introduce Rast’s opinions or any of her

work-product documents into evidence,” and that

“Longoni presented his independent expert opinions

permissibly based on his review of Rast’s work” while

“subject to Smith’s full cross-examination.” App., infra,

11a–12 ¶ 19. As support for that rationale, the court relied

on its earlier decision in Karp, which applied Arizona Rule

of Evidence 703 and the Williams plurality’s not-for-thetruth rationale, to explain that, in the court’s view, there

is “no hearsay violation when an expert testifies ‘to otherwise inadmissible evidence, including the substance of a

non-testifying expert’s analysis, if such evidence forms

the basis of the expert’s opinion.’” Ibid. (quoting Karp,

336 P.3d at 757 ¶ 13). Under this view, the hearsay statements recounted by an expert are purportedly

offered “only to show the basis of [the expert’s] opinion

and not to prove their truth.” Karp, 336 P.3d at 757

¶¶ 12–13 (citing State v. Joseph, 283 P.3d 27, 29 ¶ 12 (Ariz.

2012); Williams, 567 U.S. at 58 (plurality op.)).

Second, the Arizona Court of Appeals cited the

Williams plurality opinion and reasoned that “[h]ad

Smith sought to challenge Rast’s analysis, he could have

called her to the stand and questioned her, but he chose

not to do so.” App., infra, 12a ¶ 19 (citing Williams, 567

U.S. at 58–59).

Smith timely filed a petition seeking discretionary

review by the Arizona Supreme Court, which was denied

on January 6, 2023. App., infra, 1a.

12

REASONS FOR GRANTING THE PETITION

A. Lower Courts Are Deeply Divided Over the Viability of

the Not-for-the-Truth Rationale for Admitting

Substitute Expert Testimony and Whether a

Defendant Has a Burden to Subpoena Nontestifying

Analysts Under the Confrontation Clause.

As two Justices have aptly described it, Williams

“yielded no majority and its various opinions have sown

confusion in courts across the country.” Stuart, 139 S. Ct.

at 37 (Gorsuch & Sotomayor, JJ., dissenting) (collecting

cases). Lower court judges agree. See, e.g., United

States v. Turner, 709 F.3d 1187, 1189 (7th Cir. 2013)

(“[T]he divergent analyses and conclusions of the

plurality and dissent [in Williams] sow confusion as to

precisely what limitations the Confrontation Clause may

impose when an expert witness testifies about the results

of testing performed by another analyst, who herself is

not called to testify.”); State v. Walker, 212 A.3d 1244,

1260 (Conn. 2019) (“Due to the fractured nature of the

Williams decision, courts have struggled to determine the

effect of Williams, if any, on the legal principles

governing [C]onfrontation [C]lause claims.”). This Court

should grant review to provide further guidance and

resolve two aspects of Williams that have deeply divided

lower courts.

1. The principal reason for the fractured result in

Williams was that a majority of this Court was unable to

agree on the appropriate test for determining whether the

statements at issue were testimonial. A four-Justice

plurality found that the statements there were not

testimonial, reasoning that they were not “prepared for

the primary purpose of accusing a targeted individual.”

Williams, 567 U.S. at 84. Justice Thomas agreed that the

statements were not testimonial based on the view,

endorsed by no other Justice, that the statements did not

13

bear sufficient “formality” or “indicia of solemnity.” Id. at

110–113 (Thomas, J., concurring) (internal quotation

marks and citation omitted). Four other Justices

dissented, reasoning that the statements were testimonial

because they were “made under circumstances which

would lead an objective witness reasonably to believe

[they] would be available for use at a later trial.” Id. at

121 (Kagan, J., dissenting) (internal quotation marks and

citations omitted).

Relevant here, the Williams plurality also reasoned

that regardless of whether the statements were testimonial, no confrontation violation occurred there because,

under Evidence Rule 703 (in its federal and various state

forms), a nontestifying analyst’s “[o]ut-of-court statements that are related by [a testifying] expert solely for

the purpose of explaining the assumptions on which [the

expert’s] opinion rests are not offered for their truth and

thus fall outside the scope of the Confrontation Clause.”

567 U.S. at 57–58. The plurality further justified the

admission of such out-of-court statements through a substitute expert on the grounds that it would “not prejudice

any defendant who really wishes to probe the reliability of

the … testing done in a particular case because those who

participated in the testing may always be subpoenaed by

the defense and questioned at trial.” Id. at 58–59.

On these points, however, a majority of the Court was

able to reach consensus: Justice Thomas and the four

dissenting Justices roundly rejected the plurality’s notfor-the-truth rationale, explaining that out-of-court

statements that form the basis of an expert’s opinion are

necessarily offered for their truth because they are useful

only insofar as they are true. 567 U.S. at 104–110

(Thomas, J., concurring); id. at 125–129 (Kagan, J.,

dissenting). And as Justice Thomas noted, the Court in

14

Melendez-Diaz had already rejected the position that a

defendant’s ability to subpoena those who made the outof-court statements is a “substitute for the right of

confrontation.” Id. at 117 n.6 (Thomas, J., concurring)

(quoting Melendez-Diaz, 557 U.S. at 324); see also

Bullcoming, 564 U.S. at 666 (citing same).

2. Since then, state high courts and federal courts of

appeals have struggled to apply the split decision in

Williams. Lower courts are now firmly divided over the

viability of the Williams plurality’s not-for-the-truth

rationale.

a. A number of courts have rejected the Williams

plurality’s not-for-the-truth rationale as a basis for

permitting a substitute expert to convey the testimonial

statements of others, including the highest courts of

California, Connecticut, Delaware, Maryland, Massachusetts, and the District of Columbia. See People v.

Sanchez, 374 P.3d 320, 333 (Cal. 2016); Martin v. State, 60

A.3d 1100, 1107 (Del. 2013); Young v. United States, 63

A.3d 1033, 1045 (D.C. 2013); Walker, 212 A.3d at 1253;

Commonwealth v. Jones, 37 N.E.3d 589, 597 (Mass. 2015);

Leidig v. State, 256 A.3d 870, 900 (Md. 2021).

In Sanchez, the Supreme Court of California specifically addressed the question “whether [the] facts an

expert relates as the basis for his opinion are properly

considered to be admitted for their truth.” 374 P.3d at

326. The court was especially concerned with expert

testimony conveying “[c]ase-specific facts … relating to

the particular events and participants alleged to have

been involved in the case being tried,” such as facts

concerning the particular evidence tested in a given case

and the manner in which it was tested. Id. at 327; see also

id. at 331 (noting that the expert in Williams related the

fact that the DNA profile at issue “was in fact derived

15

from [the victim’s] swabs, rather than from some other

source” (citation omitted, brackets in original)). After

examining the applicable state evidentiary rules and the

various opinions in Williams, the court rejected the notfor-the-truth rationale, explaining that “[w]hen an expert

relies on hearsay to provide case-specific facts, considers

the statements as true, and relates them to the jury as a

reliable basis for the expert’s opinion, it cannot logically

be asserted that the hearsay content is not offered for its

truth.” Id. at 332.

In Young, the Court of Appeals for the District of

Columbia addressed a factual scenario similar to

Williams in which a substitute expert testified regarding

DNA analyses performed by nontestifying analysts even

though she herself “was not personally involved in the

process that generated the [DNA] profiles [at issue]” and

“had no personal knowledge of how or from what sources

the profiles were produced.” 63 A.3d at 1045. Although

the underlying documents were not admitted into

evidence, the court concluded that the expert necessarily

“was relaying, for their truth, the substance of out-ofcourt assertions by absent [analysts] that, employing

certain procedures, they derived the profiles from the

evidence furnished” from specific sources. Ibid. In

reaching that conclusion, the court rejected the not-forthe-truth rationale and agreed with the Williams dissent

and Justice Thomas that the rationale “does not work

because ‘the purportedly ‘limited reason’ for such

testimony—to aid the factfinder in evaluating the expert’s

opinion—necessarily entails an evaluation of whether the

16

basis is true.’” Id. at 1047 n.53 (quoting Williams, 567

U.S. at 107 (Thomas, J., concurring)). 2

Similarly, in Martin, the Supreme Court of Delaware

considered whether a substitute expert permissibly

testified regarding blood analyses performed by a nontestifying analyst based solely on her review of the analyst’s

reports. 60 A.3d at 1101. Although the reports were not

admitted, the court rejected the not-for-the-truth

rationale and relied on the opinions of Justice Thomas and

the four dissenting Justices in Williams to conclude that

the expert had conveyed the absent analyst’s representations and that those representations were offered for their

truth. Ibid. (citations omitted).

The highest courts of Maryland, Connecticut, and

Massachusetts have reached the same conclusion. In

Leidig, the Court of Appeals of Maryland “decline[d] to

accept” the not-for-the-truth rationale, noting that “[t]his

view failed to garner the support of five Justices in

Williams.” 256 A.3d at 900 n.23. 3 Instead, the court

“agree[d] with Justice Thomas that ‘statements introduced to explain the basis of an expert’s opinion are not

introduced for a plausible nonhearsay purpose.’” Ibid.

(citation omitted). In Walker, the Supreme Court of

Connecticut held that “where [a] testifying expert

explicitly refers to, relies on, or vouches for the accuracy

The court in Young also found it immaterial that the expert “independently analyzed” the underlying data and “reached her own conclusions,” explaining that “it would ‘require an impossible feat of

mental gymnastics’ to ‘disaggregate’ [the expert’s] own non-hearsay

conclusions from the interwoven hearsay on which she relied, relaying the results of the DNA testing and analysis performed” by the

absent analysts. 63 A.3d at 1048 (citation omitted).

2

In 2022, the Court of Appeals of Maryland was renamed the

Supreme Court of Maryland.

3

17

of [an] other expert’s findings, the testifying expert has

introduced out-of-court statements that, if offered for

their truth and are testimonial in nature, are subject to

the [C]onfrontation [C]lause.” 212 A.3d at 1253. Though

it was uncontested that the nontestifying analysts’

statements there were offered for their truth, the court

found this concession “unavoidable” and further recognized that “five [J]ustices in Williams rejected the

plurality’s” not-for-the-truth rationale. Id. at 1256–1257

(citations omitted). In Jones, the Supreme Judicial Court

of Massachusetts applied its common-law evidentiary

rules to conclude that statements related by a substitute

expert regarding procedures used by nontestifying

nurses to collect the DNA samples at issue had been

offered for their truth. 37 N.E.3d at 597.

b. By contrast, a number of courts have adopted the

Williams plurality’s not-for-the-truth rationale, including

the highest courts of Arizona, Maine, Mississippi, Tennessee, and Vermont, as well as the Eleventh Circuit. The

Arizona Supreme Court’s decision in Joseph, which the

decision below indirectly applied, is illustrative. 4 The

court there approvingly cited the Williams plurality’s

not-for-the-truth rationale and held that “[b]ecause the

facts underlying an expert’s opinion are admissible only

to show the basis of that opinion and not to prove their

truth, an expert does not admit hearsay or violate the

Confrontation Clause by revealing the substance of a nontestifying expert’s opinion.” Joseph, 283 P.3d at 29-30

The Arizona Court of Appeals in this case relied on its earlier

decision in Karp, which in turn relied on Joseph and the Williams

plurality opinion for the proposition that hearsay statements

recounted by an expert are offered “only to show the basis of [the

expert’s] opinion and not to prove their truth.” Karp, 336 P.3d at 757

¶ 12 (citing Joseph, 283 P.3d at 29 ¶ 12); see also id. ¶ 13 (citing

Williams, 567 U.S. at 58 (plurality op.)).

4

18

¶¶ 8, 12 (citing Williams, 567 U.S. at 58 (plurality op.));

accord State v. Mercier, 87 A.3d 700, 704 (Me. 2014);

Hingle v. State, 153 So.3d 659, 664 (Miss. 2014); State v.

Hutchison, 482 S.W.3d 893, 914 (Tenn. 2016); State v.

Tribble, 67 A.3d 210, 218 (Vt. 2012); United States v.

Murray, 540 F. App’x 918, 921 (11th Cir. 2013).

Other courts, while not directly addressing the notfor-the-truth rationale, have indirectly applied it by

justifying the admission of substitute expert testimony

revealing statements by absent analysts regarding

analyses performed on particular evidence on the grounds

that the testifying expert offered some “independent

opinion.” See, e.g., State v. Brewington, 743 S.E.2d 626,

628–629 (N.C. 2013); State v. McLeod, 66 A.3d 1221, 1230–

1232 (N.H. 2013).

c. Further still, many courts have been unable to

discern any guiding principles from Williams, even as to

the plurality’s not-for-the-truth rationale, and have

instead limited Williams to its particular facts. In State

v. Griep, 863 N.W.2d 567 (Wis. 2015), for example, the

Supreme Court of Wisconsin unsuccessfully attempted a

Marks analysis to distill a holding from Williams. Id. at

579 n.16 (citing Marks v. United States, 430 U.S. 188, 193

(1977)); see also United States v. James, 712 F.3d 79, 95

(2d Cir. 2013) (“Williams does not, as far as we can

determine, using the Marks analytic approach, yield a

single, useful holding relevant to the case before us. It is

therefore for our purposes confined to the particular set

of facts presented in that case.”).

Despite their inability to discern a holding from

Williams, these courts often have rationalized the admission of substitute expert testimony on the grounds that, if

the testimony at issue were presented to the same

Justices in Williams, five Justices would uphold its

19

admission, including the plurality for the reason that the

expert’s basis testimony was not offered for its truth. See,

e.g., United States v. Shanton, 513 F. App’x 265, 267 (4th

Cir. 2013) (“If this case were to go before the Supreme

Court again, we believe five [J]ustices would affirm”

including the plurality “on the ground[s] that the statements were not admitted for the truth of the matter asserted.”); United States v. Pablo, 696 F.3d 1280, 1291

(10th Cir. 2012) (“The four-Justice plurality in Williams

likely would determine that [the expert’s basis] testimony

was not offered for the truth of the matter asserted.”);

State v. Lui, 315 P.3d 493, 503 (Wash. 2014) (“[O]ur decision is consistent with the five [J]ustices in Williams.”).

3. In addition to the not-for-the-truth rationale, lower

courts are divided over whether a defendant bears any

burden to independently subpoena the prosecution’s

absent analysts and secure their testimony at trial. Many

courts addressing this issue have faithfully applied this

Court’s holding in Melendez-Diaz that “the Confrontation

Clause imposes a burden on the prosecution to present its

witnesses, not on the defendant to bring those adverse

witnesses into court.” 557 U.S. at 324; accord United

States v. Walker, 673 F.3d 649, 656 (7th Cir. 2012); United

States v. Macias, 789 F.3d 1011, 1018 (9th Cir. 2015); State

v. Sykes, 204 A.3d 1282, 1290 (Me. 2019); People v. Fackelman, 802 N.W.2d 552, 559 (Mich. 2011).

But given the Williams plurality’s treatment of this

issue, some courts have disregarded the holding of

Melendez-Diaz and placed the burden on the defendant to

subpoena nontestifying analysts. For example, in the

decision below, the Arizona Court of Appeals cited the

Williams plurality decision to rationalize the admission of

Longoni’s substitute testimony on the grounds that “[h]ad

Smith sought to challenge Rast’s analysis, he could have

20

called her to the stand and questioned her, but he chose

not to do so.” App., infra, 12a ¶ 19 (citing Williams, 567

U.S. at 58–59). And Arizona courts are not alone. See,

e.g., State v. Garcia, No. 33,756, 2014 WL 2933211, at *4

(N.M. June 26, 2014); Commonwealth v. LaLonde, No.

3468 EDA 2012, 2014 WL 10965225, at *13 (Pa. Super. Ct.

Apr. 28, 2014).

This Court’s intervention is needed to resolve the confusion and divide among lower courts regarding the propriety of the not-for-the-truth rationale and to reaffirm

that a defendant bears no burden to subpoena the prosecution’s absent analysts under the Confrontation Clause.

B. The Rationales Applied by the Arizona Court of

Appeals and Similarly Applied by Other Lower Courts

Do Not Comport with, and Threaten to Swallow, the

Confrontation Clause.

The Arizona Court of Appeals justified the admission

of Longoni’s substitute expert testimony on the grounds

that he had “presented his independent expert opinions”

and that an expert may “testif[y] ‘to otherwise inadmissible evidence, including the substance of a non-testifying

expert’s analysis, if such evidence forms the basis of the

expert’s opinion.’” App., infra, 11a–12a ¶ 19 (quoting

Karp, 336 P.3d at 757 ¶13). Under that rationale, the

hearsay statements recounted by an expert are purportedly offered “only to show the basis of [the expert’s] opinion and not to prove their truth.” Karp, 336 P.3d at 757

¶ 12. The Arizona Court of Appeals further reasoned that

“[h]ad Smith sought to challenge Rast’s analysis, he could

have called her to the stand and questioned her, but he

chose not to do so.” App., infra, 12a ¶ 19 (citations omitted). Those rationales, which other courts have similarly

applied, do not withstand scrutiny, and if allowed to per-

21

sist, would provide deft prosecutors with an unwarranted

end-run around the Confrontation Clause in most cases.

1. Five Justices in Williams rejected the not-for-thetruth rationale that was applied in this case by the Arizona

Court Appeals, and for good reason—it is not consistent

with the Confrontation Clause. See Williams, 567 U.S. at

104–110 (Thomas, J., concurring) (rejecting plurality’s

not-for-the-truth rationale); id. at 125–129 (Kagan, J.,

dissenting) (same). As Justice Kagan aptly explained, “to

determine the validity of [an expert’s] conclusion, the

factfinder must assess the truth of the out-of-court statement on which it relies” such that the statement’s “utility

is then dependent on its truth.” Id. at 126 (Kagan, J.,

dissenting). Thus, as the principal modern treatise on

evidence explains, “[o]ne can sympathize … with a court’s

desire to permit the disclosure of basis evidence that is

quite probably reliable, such as a routine analysis of a

drug, but to pretend that it is not being introduced for the

truth of its contents strains credibility.” Id. at 127 (quoting D. Kaye et al., THE NEW WIGMORE: EXPERT

EVIDENCE § 4.10.1, at 198 (2d ed. 2011)).

Similarly, it is irrelevant whether the underlying

documents prepared by the absent analyst are themselves

admitted or whether the expert offers some “independent

opinion,” because a confrontation violation occurs when

the expert relates testimonial statements from those

documents. Put simply, it does not matter “whether the

statement is quoted verbatim or conveyed only in

substance; whether it is relayed explicitly or merely

implied; whether the declarant is identified or not.”

Young, 63 A.3d at 1044. And even if an expert provides

some independent opinion, that does not justify or cure

the confrontation violation, because “it would ‘require an

impossible feat of mental gymnastics’ to ‘disaggregate’

22

[the expert’s] own non-hearsay conclusions from the

interwoven hearsay on which [the expert] relied” and

related to the trier of fact. Id. at 1047 (citation omitted).

Smith’s case epitomizes these flaws in the not-for-thetruth rationale. Significantly, Longoni did not simply

testify hypothetically or in a vacuum that the certain test

results he reviewed reflected the presence of controlled

substances. Rather, he affirmatively testified that Rast

performed particular tests on the specific evidence in

Smith’s case to reach those results—all information that

he necessarily related from Rast’s statements in her notes

and report because he lacked personal knowledge of

Rast’s analyses. App., infra, 44a–45a. Notably, these are

the very same types of statements that this Court found

problematic in Bullcoming. See 550 U.S. at 660 (noting

that the nontestifying analyst there made representations

that “he performed on Bullcoming’s sample a particular

test, adhering to a precise protocol”).

Rast’s underlying statements, in turn, were offered for

their truth, because to the extent that Longoni provided

any “independent opinions,” those opinions depended on

Rast’s statements being true. 5 Longoni’s opinions, therefore, cannot be properly described as “independent.”

That characterization, in fact, derives from the suggestive

manner in which the prosecution framed its questioning

to ask Longoni for his “independent opinion.” See App.,

infra, 46a (“[C]an you form an independent opinion on the

identity of Item 26?”); id. at 47a (“Do you have an independent opinion on the result of what Item 20A is? … And

To be sure, it is possible that a substitute expert could offer an

independent opinion without violating the Confrontation Clause, for

example if that expert observed the original testing or retested the

evidence. But as Longoni admitted, he did neither and had no

personal knowledge of the testing at issue. App., infra, 44a–45a.

5

23

likewise for 20B?”); id. at 49a (“Can you form an independent opinion … on what Item 28 is?”). If that is all that

were required, then any skilled prosecutor could frame

the questioning to elicit an “independent opinion” from a

substitute expert that bypasses the Confrontation Clause.

2. The Arizona Court of Appeals’ other rationale—

that Smith did not independently subpoena and seek to

secure Rast’s testimony—fares no better and was

squarely rejected by this Court in Melendez-Diaz. 557

U.S. at 324. Fundamentally, as this Court explained, “the

Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring

those adverse witnesses into court.” Ibid. The Arizona

Court of Appeals’ reasoning also makes little practical

sense because “[u]nlike the Confrontation Clause,” the

ability of a defendant to subpoena a witness is “of no

use … when the witness is unavailable or simply refuses

to appear.” Ibid. (citation omitted). Indeed, this reasoning assumes that Rast was available and willing to testify,

which if true begs the question why the State did not

secure her presence at trial. It is all the more troubling

given that the State never explained why Rast was no

longer employed by the DPS crime lab. And given that

the prosecution bears the burden to prove its case beyond

a reasonable doubt, defendants in most cases are unlikely

to subpoena adverse witnesses who form the basis of the

prosecution’s case, thus providing skilled prosecutors yet

another mechanism to bypass the Confrontation Clause.

In short, the rationales applied here by the Arizona

Court of Appeals and similarly applied by other courts do

not comport with the Confrontation Clause. Unless this

Court intervenes, these rationales will persist and ensure

that defendants in jurisdictions across the country are

24

deprived of a meaningful opportunity to confront some of

the most important witnesses against them.

C. The Question Presented Is an Important and

Recurring One, and This Case Presents the Ideal

Vehicle for Addressing It.

1. The question presented implicates recurring

issues of national significance to the proper administration of criminal trials in which forensic analyses play an

increasingly central evidentiary role. As reflected by the

sheer number of cases grappling with the question

presented (see Section A, supra), prosecutors in many

jurisdictions across the country rely on substitute experts

to present the forensic analyses of nontestifying analysts.

And it is in these cases that the Confrontation Clause’s

safeguards are perhaps most needed. Indeed, forensic

evidence often can be superficially impressive to juries,

carrying with it an air of infallibility propagated by

popular media. See, e.g., State v. Bowman, 337 S.W.3d

679, 694 n.3 (Mo. 2011) (taking judicial notice of the socalled “CSI Effect”). Concerns about forensic evidence

also have been repeatedly validated and reinforced by

incidents of negligence, incompetence, bias, and even

fraud on the part of forensic analysts, including “drylabbing” incidents where analysts have reported results of

testing that they never even conducted. See generally

Brief of Amicus Curiae The Innocence Network, Bullcoming v. New Mexico, 564 U.S. 647 (2011) (No. 09-10876),

2010 WL 5043100. Now, more than ever, lower courts,

prosecutors, and defense lawyers need this Court’s guidance on whether, and the extent to which, the Confrontation Clause permits substitute expert testimony.

2. This case presents the ideal vehicle for this Court

to address the question presented and resolve the

confusion and divide among lower courts. As an initial

25

matter, this case comes to this Court on direct appeal

under the broadest standard of review and free of any

procedural constraints. Smith timely objected and argued

that Longoni’s testimony violated the Confrontation

Clause (App., infra, 41a–45a, 55a–62a) and preserved the

issue on appeal (App., infra, 3a ¶ 1). The Arizona Court of

Appeals, in turn, substantively addressed and decided

Smith’s confrontation argument (App., infra, 10a–12a

¶¶ 16–20), and it is properly presented for this Court’s

review. See Raley v. Ohio, 360 U.S. 423, 436 (1959).

This case also squarely raises the question presented.

In finding that Longoni’s testimony did not violate the

Confrontation Clause, the Arizona Court of Appeals

invoked the Williams plurality’s not-for-the-truth

rationale to hold that an expert may “testif[y] ‘to otherwise inadmissible evidence, including the substance of a

non-testifying expert’s analysis, if such evidence forms

the basis of the expert’s opinion.’” App., infra, 11a–12a

¶ 19 (citation omitted). And the court further cited the

Williams plurality opinion for the proposition that “[h]ad

Smith sought to challenge Rast’s analysis, he could have

called her to the stand and questioned her, but he chose

not to do so.” Ibid. (citing 567 U.S. at 58–59).

Moreover, this case avoids the pitfalls that Williams

posed and will enable this Court to get past the testimonial nature of the underlying statements and decide the

question presented. Indeed, Rast’s statements that

Longoni related to the jury are testimonial under either

the Williams dissent’s broader evidentiary-purpose test

or the plurality’s narrower targeted-individual test,

because Rast tested the evidence and prepared the statements at issue at the direct request of the State and for

the express purpose of generating evidence to use against

Smith at trial. See, e.g., App., infra, 127a (reflecting that

26

State specifically identified Smith in its request for testing

and noted that “trial ha[d] been set” in Smith’s case); 6 see

also App., infra, 99a (reflecting that State’s attorney coordinated with Rast regarding testing to build case

against Smith).

Further, Rast’s report and notes, including the results

of the GC-MS tests she performed, are part of the record

on appeal. App., infra, 85a–126a. Thus, this Court may

review precisely the same materials that Longoni

reviewed and determine for itself whether Longoni’s

testimony impermissibly related Rast’s testimonial

statements to the jury.

Finally, Smith’s inability to cross-examine Rast

presents a compelling case of prejudice. Significantly, the

forensic analyses that Rast performed “require[d]

specialized knowledge and training” in which “human

error can occur at each step.” Bullcoming, 564 U.S. at

654. In Rast’s absence, Smith could not interrogate her

about “lapses or lies” in her materials and could not “ask[ ]

questions designed to reveal whether incompetence,

evasiveness, or dishonesty [might have] accounted for”

her employment at the DPS crime lab ending. Id. at 661–

662. And as the State acknowledged in its summation,

Longoni’s testimony recounting Rast’s statements was essential to establishing the identity of the alleged drug evidence. App., infra, 64a–65a, 83a (arguing that “[Longoni]

told you … what those drugs are” and that “[Longoni] was

able to see that the policies and procedures were followed,

[and] he was able to tell how these were tested”). At the

Rast’s report and notes also likely meet Justice Thomas’ formality

criterion because they were prepared at the behest of the State under

formalized procedures and printed on DPS letterhead. App., infra,

85a–87a; App., infra, 88a–107a. Rast also signed each page of her

report. App., infra, 85a–87a.

6

27

same time, as Longoni acknowledged, it would have taken

him less than three hours to retest the evidence in Smith’s

case. Id. at 51a. The State thus had available a simple,

alternative means for presenting its case without violating

Smith’s confrontation right—it just chose not to pursue it.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Diane M. Johnsen

PERKINS COIE LLP

2901 North Central Ave

Suite 2000

Phoenix, AZ 85012

Robert Trebilcock

Deputy Public Defender

OFFICE OF YUMA COUNTY

PUBLIC DEFENDER

168 South 2nd Avenue

Yuma, Arizona 85364

MARCH 14, 2023

Hari Santhanam

Counsel of Record

PERKINS COIE LLP

110 North Wacker Drive

Suite 3400

Chicago, IL 60606

(312) 324-8447

HSanthanam@perkinscoie.com