Reply Brief — Jason Smith, Petitioner v. Arizona

No. 22-899

In the Supreme Court of the United States

_______________

JASON SMITH,

Petitioner,

v.

STATE OF ARIZONA,

Respondent.

_________________________

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of Arizona, Division One

___________________

REPLY BRIEF FOR PETITIONER

___________________

Michael R. Huston

PERKINS COIE LLP

700 Thirteenth Street N.W.

Suite 800

Washington, D.C. 20005

Diane M. Johnsen

PERKINS COIE LLP

2901 North Central Ave

Suite 2000

Phoenix, AZ 85012

Hari Santhanam

Counsel of Record

PERKINS COIE LLP

110 North Wacker Dr

Suite 3400

Chicago, IL 60606

(312) 324-8447

HSanthanam@perkinscoie.com

Robert Trebilcock

Deputy Public Defender

OFFICE OF YUMA COUNTY

PUBLIC DEFENDER

168 South 2nd Ave

Yuma, AZ 85364

Counsel for Petitioner

TABLE OF CONTENTS

Page

Argument ............................................................................. 2

A. This Court’s inervention is needed to

resolve the confusion and divide among

lower courts.............................................................. 2

B. The decision below is incorrect. ............................. 5

C. The question presented is recurring and

important, and this case provides an ideal

vehicle. ...................................................................... 7

Conclusion .......................................................................... 12

(i)

ii

TABLE OF AUTHORITIES

Page(s)

CASES

Bullcoming v. New Mexico,

564 U.S. 647 (2011) .................................... 4, 5, 6, 7, 10, 11

Commonwealth v. Jones,

37 N.E.3d 589 (Mass. 2015) .............................................. 3

Hemphill v. New York,

142 S. Ct. 681 (2022) .................................................... 8, 11

Leidig v. State,

256 A.3d 870 (Md. 2021) .................................................... 3

Martin v. State,

60 A.3d 1100 (Del. 2013) ................................................... 3

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009) .................................................. 4, 5, 11

People v. Sanchez,

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

Raley v. Ohio,

360 U.S. 423 (1959) ............................................................ 8

State v. Navarette,

294 P.3d 435 (N.M. 2013) .................................................. 2

State v. Walker,

212 A.3d 1244 (Conn. 2019) .............................................. 3

Stuart v. Alabama,

139 S. Ct. 36 (2018) ............................................................ 5

United States v. Jackson,

636 F.3d 687 (5th Cir. 2011) ........................................... 11

United States v. James,

712 F.3d 79 (2d Cir. 2013) ................................................. 5

Williams v. Illinois,

567 U.S. 50 (2012) .................................. 1, 2, 3, 4, 5, 7, 8, 9

Young v. United States,

63 A.3d 1033 (D.C. 2013) ................................................... 3

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

___________________

REPLY BRIEF FOR PETITIONER

____________

This Court should grant the petition for a writ of certiorari to resolve the acknowledged and growing divide

among the lower courts in the wake of Williams v.

Illinois, 567 U.S. 50 (2012), over a criminal defendant’s

constitutional right to confront a nontestifying forensic

analyst. The petition showed that lower courts are divided

over both whether a nontestifying analyst’s statements

can be admitted through a substitute expert on the

ground that they are not offered for their truth, and

whether the admission of those statements would be nonprejudicial to a defendant who did not independently subpoena the nontestifying analyst. The State does not dispute the lower courts’ disagreement on those rationales,

which were posited by the Williams plurality but rejected

by five Justices. Instead, the State merely argues that

many courts have adopted the not-for-the-truth rationale,

without denying that others have roundly rejected it.

The State also offers no meaningful rebuttal to the

petition’s showing that this case is an ideal vehicle for ad(1)

2

dressing the question presented. The State does not

dispute that Smith properly raised and preserved his

Confrontation Clause argument. Nor does the State

dispute that the statements introduced by the prosecution

at Smith’s trial are testimonial under the tests applied by

both the plurality and the dissent in Williams. Thus, the

core issue that divided this Court in Williams poses no

problem here, and this case would enable the Court to

finally resolve the not-for-the-truth and failure-to-subpoena rationales that have continuously divided lower

courts. The State offers only a few afterthought reasons

why this case would purportedly be a poor vehicle, but

none has merit.

ARGUMENT

A. This Court’s Intervention Is Needed to Resolve the

Confusion and Divide Among Lower Courts.

1. The State offers no rebuttal to the fact that the notfor-the-truth rationale has firmly divided state high

courts and federal courts of appeals. At most, the State

tries to downplay the divide, arguing that petitioner “minimizes the number of jurisdictions that rely on [the]

Williams [plurality] favorably and/or employ its reasoning.” Opp. 16. But critically, the State does not dispute

that many courts have expressly rejected the not-for-thetruth rationale, including the highest courts of California,

Connecticut, Delaware, Maryland, Massachusetts, New

Mexico, and the District of Columbia (Pet. 14–17). 1

In addition to the courts noted in the petition, the Supreme Court of

New Mexico also has rejected the not-for-the-truth rationale. State v.

Navarette, 294 P.3d 435, 439 (¶13) (N.M. 2013) (distilling from the

opinions of Justice Thomas and the four dissenting Justices in Williams the principle that “an out-of-court statement that is disclosed

to the fact-finder as the basis for an expert’s opinion is offered for the

truth of the matter asserted”).

1

3

Nor can the State dispute that a conflict exists in the

face of clear statements of disagreement by lower courts:

x

“We decline to accept [the not-for-the-truth

rationale]. To the contrary, we agree with Justice

Thomas [and the Williams dissent] that statements introduced to explain the basis of an expert’s

opinion are not introduced for a plausible nonhearsay purpose.’’ Leidig v. State, 256 A.3d 870, 900–

901 n.23 (Md. 2021) (internal citations and quotation marks omitted).

x

“We agree with [Justice Thomas and the Williams

dissent] that the [not-for-the-truth] rationale for

admission 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 basis is

true.” Young v. United States, 63 A.3d 1033, 1047

n.53 (D.C. 2013) (internal citations and quotation

marks omitted).

x

“We find persuasive the reasoning of [Justice

Thomas and the Williams dissent]. When an

expert is not testifying in the form of a proper

hypothetical question and no other evidence of the

case-specific facts presented has or will be

admitted, there is no denying that such facts are

being considered by the expert, and offered to the

jury, as true.” People v. Sanchez, 374 P.3d 320, 333

(Cal. 2016) (internal citations and quotation marks

omitted).

See also Pet. 16–17 (discussing Martin v. State, 60 A.3d

1100, 1106–1107 (Del. 2013); State v. Walker, 212 A.3d

1244, 1255–1256 (Conn. 2019); Commonwealth v. Jones,

37 N.E.3d 589, 596–597 (Mass. 2015)).

4

The State offers no persuasive justification for why

this open and deep conflict over the meaning of a provision

of the Bill of Rights should be allowed to persist. The

State says that “Confrontation Clause cases in this arena

are often fact-dependent.” Opp. 19. But the conflict here

does not turn on any factual issues. Rather, it reflects the

undisputed and fundamental disagreement among lower

courts over whether the not-for-the-truth rationale—

rejected by five Justices in Williams—comports with the

Confrontation Clause. And if anything, the fact that a

sizable number of courts have adopted this rationale

underscores that defendants’ confrontation rights are

being abridged across large swaths of the country and

that this Court’s intervention is direly needed.

2. The State also does not deny (nor could it deny)

that the Arizona Court of Appeals and other lower courts

have invoked the Williams plurality opinion to place the

burden on defendants to subpoena the prosecution’s

absent analysts. And the State does not attempt to explain

how that requirement can be reconciled with this Court’s

decisions in Melendez-Diaz v. Massachusetts, 557 U.S.

305, 324 (2009), and Bullcoming v. New Mexico, 564 U.S.

647, 666 (2011). Pet. 19–20. Here too, the State merely

attempts unpersuasively to downplay the conflict. It

argues that the failure-to-subpoena rationale “does not

appear to have been a critical underpinning of the conclusions in th[e] cases” that have applied it (Opp. 22), while

ignoring that the State itself successfully advocated for

this rationale in the proceedings below.

The State’s argument also misses the point: the

fractured result in Williams has engendered so much

confusion that prosecutors and lower court judges are

disregarding even the clear holdings in this Court’s prior

decisions. Justice Kagan’s dissent in Williams aptly pre-

5

dicted this result: “[Melendez-Diaz and Bullcoming]

apparently no longer mean all that they say. Yet no one

can tell in what way or to what extent they are altered

because no proposed limitation commands the support of

a majority.” Williams, 567 U.S. at 141 (Kagan, J. dissenting). Six years after Williams, Justices Gorsuch and

Sotomayor recognized the confusion and divide that

Williams already had sown among lower courts. Stuart v.

Alabama, 139 S. Ct. 36, 36–37 (2018) (Gorsuch &

Sotomayor, JJ., dissenting). Now, more than twelve years

after Williams, the situation has only worsened, and this

Court should intervene.

B. The Decision Below Is Incorrect.

The State argues that the “Arizona Court of Appeals

got it right,” making several assertions that fail to address

or rebut Smith’s confrontation argument. 2

1. The State asserts that the nontestifying analyst

“Rast’s report was not admitted, nor her conclusions.”

Opp. 14. But the State offers no rebuttal to Smith’s argument that the testifying expert (Longoni) nonetheless

conveyed to the jury Rast’s statements from her notes

and report that she performed particular tests on the

specific evidence in Smith’s case (Pet. 22). The State

likewise offers no rebuttal to Smith’s argument that

Rast’s statements were offered for their truth because

Longoni’s opinions necessarily depended on the statements being true (Pet. 22–23).

The State also applies the Williams plurality opinion as if it were

the decision of “this Court.” Opp. 9, 11–12. “Five Justices,” however,

“specifically reject[ed] every aspect of [the plurality opinion’s] reasoning and every paragraph of its explication.” 567 U.S. at 120 (Kagan, J. dissenting); see also, e.g., United States v. James, 712 F.3d 79,

95 (2d Cir. 2013) (“Williams does not, as far as we can determine …

yield a single, useful holding relevant to the case before us.”).

2

6

Notably, the State does not even attempt to address

the excerpts of Longoni’s testimony quoted in the petition

that show unequivocally that Longoni repeatedly referenced Rast’s notes and report to recount Rast’s statements from those documents (Pet. 7–9). At most, the State

downplays all of this in a passing comment, saying

“Longoni merely refreshed his recollection.” Opp. 14. But

critically, Longoni had no recollection in the first instance

to refresh because he admittedly and undisputedly had no

personal knowledge of Rast’s testing. Pet. App. 44a–45a.

2. Recognizing as much, the State places heavy

emphasis on the fact that Longoni worked at the same lab

as Rast and purportedly had “personal knowledge of the

lab’s procedures.” Opp. 14. The problem, though, is that

Longoni had no personal knowledge of the specific tests

Rast performed in Smith’s case. Indeed, in Bullcoming,

this Court rejected a nearly identical argument. 564 U.S.

at 651–652. There, the prosecution similarly presented

testimony by a substitute expert who purportedly “was

familiar with the laboratory’s testing procedures, but had

neither participated in nor observed the test.” Id. at 651.

This Court, however, was not persuaded by the fact that

the testifying expert had a connection to the lab but not

the specific testing at issue, “hold[ing] that surrogate

testimony of that order does not meet the constitutional

requirement” of confrontation. Id. at 652.

3. The State finally tries to recast Smith’s confrontation argument as an objection to whether Longoni had

“adequate foundation to provide an admissible or credible

expert opinion that the drugs were marijuana, cannabis,

and methamphetamine.” Opp. 15. That too is wrong.

Smith’s objection is not that the State failed to provide a

foundation for Longoni’s testimony but rather that the

testimony the State presented to lay a foundation violated

7

his confrontation right. To be sure, the State could have

had Longoni testify hypothetically that the certain test results he reviewed in the abstract reflected the presence of

controlled substances. But recognizing that it needed to

link those test results to Smith, the State went further: it

had Longoni recount Rast’s statements from her notes

and report regarding the specific tests she performed in

Smith’s case and the results she reached—all without

providing Smith any opportunity to cross-examine Rast.

The introduction of those statements without any opportunity for Smith to cross-examine the critical witness

against him violated his Sixth Amendment right. Cf. Williams, 567 U.S. at 129 (Kagan, J. dissenting).

C. The Question Presented Is Recurring and Important,

and This Case Provides an Ideal Vehicle.

1. The State does not dispute that the question presented here is important and recurring. As underscored

by the cases discussed in the petition (Pet. 14–19) and further reinforced by the cases cited by the State (Opp. 16–

19), prosecutors in jurisdictions across the country rely on

substitute experts to present the forensic analyses of nontestifying analysts. But it is in these cases that the Confrontation Clause’s safeguards are especially vital, given

the unwarranted air of infallibility that forensic

evidence often carries and the numerous, confirmed

instances of negligence, incompetence, bias, and even

fraud on the part of forensic analysts. Pet. 24.

This case epitomizes these concerns. Even now, the

State offers no explanation for why Rast—the analyst

who tested the underlying evidence and whose statements

the State relied on to secure Smith’s convictions—ended

her employment with the state-run crime lab. Cf. Bullcoming, 564 U.S. at 659, 662 (expressing concern where

analyst had been “placed on unpaid leave for an

8

undisclosed reason”). In Rast’s absence, Smith had no

opportunity to confront her about any “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 lab

ending. Id. at 661–662.

2. The State similarly offers no rebuttal to the key

reasons why this case is an ideal vehicle for addressing the

question presented. There is no dispute that Smith raised

and preserved his Confrontation Clause argument in the

proceedings below, nor any dispute that the Arizona

Court of Appeals substantively applied the not-for-thetruth and failure-to-subpoena rationales. So there is no

barrier to this Court addressing those rationales here.

See Hemphill v. New York, 142 S. Ct. 681, 689 (2022);

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

The State also does not dispute that Rast’s statements

at issue here are testimonial, whether one views them

under the Williams dissent’s evidentiary-purpose test or

the plurality’s narrower targeted-individual test. That is

because the State specifically requested the testing that

Rast performed for the express purpose of generating

evidence to use against Smith at trial (Pet. App. 127a–

128a), and the State proceeded to coordinate with Rast on

her testing in anticipation of Smith’s trial (Pet. App. 99a).

Because Rast’s statements are undisputedly and indisputably testimonial, this case avoids the core issue that divided this Court in Williams, enabling the Court to

resolve the not-for-the-truth and failure-to-subpoena

rationales that have since divided lower courts.

3. Against this backdrop, the State’s attempt to paint

this case as a “poor vehicle” (Opp. 7) rings hollow.

a. The State’s principal argument is that the Arizona

Court of Appeals did not consider Rast’s report, which the

9

State asserts is vital to Smith’s argument, and that this

Court should not review the report in the first instance.

Opp. 7. That not only is wrong but also misses the point.

It is wrong because, in connection with his briefing before

the Arizona Court of Appeals, Smith submitted and cited

an appendix containing Rast’s notes (Pet. App. 88a–126a),

which are more comprehensive and reflect the full substance of what appears in her report (Pet. App. 85a–87a).

Resp. App. 5. Thus, the Arizona Court of Appeals had before it the full substance of all the materials Longoni considered. Later, in seeking discretionary review by the

Arizona Supreme Court, and out of an abundance of caution, Smith requested to have the record formally supplemented to include Rast’s notes and report. Ibid. The State

did not oppose, and the Arizona Supreme Court granted

Smith’s request. Pet. App. 1a.

The State’s argument also misses the point because

Smith’s confrontation argument is not predicated on

Rast’s report being part of the record. Rather, it is predicated on Longoni’s testimony as reflected in the trial transcript, which the Arizona Court of Appeals undisputedly

considered and leaves no doubt that Longoni repeatedly

referred to, and recounted, Rast’s statements from her

notes and report regarding the tests she performed on the

specific evidence in Smith’s case and the results she

reached. Pet. 7–9 (excerpting Longoni’s testimony).

Nonetheless, the availability of Rast’s notes and

report in the record here offers a perspective into what

Longoni considered in purportedly providing an “independent opinion,” a perspective that was unavailable in

prior cases that have come before this Court. If anything,

that makes this case an ideal vehicle, not a poor one.

b. The State next argues that “this case presents a

fundamentally different factual scenario” than Williams

10

because the State’s expert was employed by the same lab

as Rast and was familiar with the lab’s procedures. Opp.

8. As noted, this ignores that Longoni had no personal

knowledge or familiarity with the specific tests Rast performed on the evidence in Smith’s case. And, indeed, this

Court was not persuaded in Bullcoming by the fact that

the prosecution’s expert there was familiar with the testing lab’s procedures because the expert had no familiarity

with the specific testing at issue. 564 U.S. at 651–652.

c. The State additionally asserts, with no explanation

or exposition, that “[t]he core issue at Smith’s trial was

whether Smith knowingly possessed the contraband, not

whether the contraband was marijuana, cannabis, and

methamphetamine.” Opp. 8 (emphasis in original). Of

course, if the identity of the alleged contraband were not

in dispute (it was), it begs the question why the State

presented Longoni’s testimony at all, let alone why the

State repeatedly relied on Longoni’s testimony in closing

arguments to try to prove its identity. See, e.g., App 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.”). Indeed, in

addressing Smith’s confrontation argument, the trial

court recognized precisely why the State called Longoni:

the State sought to identify “what the nature of the substances was that w[ere] tested” by Rast. Id. at 62a.

d. Last, the State argues that Longoni’s testimony

“was not needed for [Smith’s] possession of marijuana for

sale conviction.” Opp. 9. To be sure, having introduced and

relied extensively on Longoni’s testimony, the State is

hard-pressed to argue now that this testimony “did not

11

contribute” to any of Smith’s convictions, including his

marijuana conviction. United States v. Jackson, 636 F.3d

687, 697 (5th Cir. 2011) (citation omitted). 3

More fundamentally, by focusing on Smith’s marijuana conviction, the State tacitly concedes that Longoni’s

testimony was needed for Smith’s other convictions for

possession of cannabis and methamphetamine. See Opp.

9. Indeed, Longoni’s recounting of Rast’s statements

provided the only evidence at trial that any alleged contraband comprised cannabis or methamphetamine. And

though the State tries to minimize Smith’s cannabis and

methamphetamine convictions, Smith assuredly takes

them seriously as they reflect a stain on his record and

resulted in him being sentenced to imprisonment (Pet.

App. 18a–19a)—all without having had any opportunity to

cross-examine the sole witness whose statements were

used against him to secure those convictions.

To the extent that the State raises a belated harmless-error argument as to Smith’s marijuana conviction, the State failed to raise this

argument in any of the proceedings below. That failure does not

impede this Court’s ability to review the lower court’s Confrontation

Clause holding. See, e.g., Hemphill, 142 S. Ct. at 693 n.5 (addressing

confrontation argument while declining to address harmless-error

argument in first instance); Melendez-Diaz, 557 U.S. at 329 n.14

(2009) (same); Bullcoming, 564 U.S. at 668 n.11 (same).

3

12

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Michael R. Huston

PERKINS COIE LLP

700 Thirteenth Street N.W.

Suite 800

Washington, D.C. 20005

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

JULY 11, 2023

Hari Santhanam

Counsel of Record

PERKINS COIE LLP

110 North Wacker Drive

Suite 3400

Chicago, IL 60606

(312) 324-8447

HSanthanam@perkinscoie.com