Reply Brief — BJ McElveen, Petitioner v. Louisiana

No. 25-6922

In The

Supreme Court of the United States

____________

BJ MCELVEEN,

Petitioner,

v.

STATE OF LOUISIANA

Respondent.

______________

On Petition for Writ of Certiorari to the

Supreme Court of Louisiana

____________

REPLY BRIEF FOR PETITIONER

____________

JANE C. HOGAN

Counsel of Record

HOGAN ATTORNEYS

310 N. CHERRY STREET

HAMMOND, LA 70401

TEL: (985) 542-7730

E-MAIL: JANE@HOGANATTORNEYS.COM

APRIL 29, 2026

i

TABLE OF CONTENTS

Page

Table of Authorities ....................................................................................................... ii

Reply Brief for Petitioner. ............................................................................................. 1

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

ii

TABLE OF AUTHORITIES

Cases

Bullcoming v. New Mexico, 564 U.S. 647 (2011) ...................................................... 4, 5

Busby v. Mississippi, No. 25-6885 ....................................................................... 1, 9, 11

Chapman v. California, 386 U.S. 18 (1967).................................................................. 8

Commonwealth v. Gordon, 266 N.E.3d 369 (Mass. 2025) .......................................... 11

Commonwealth v. Walker, 350 A.3d 54 (Pa. 2026) ..................................................... 11

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ......................................................... 7, 8

Dunlap v. State, 2025 WL 1039557 (Md. App. Ct. 4/8/25) ......................................... 11

Lawrence v. Chater, 516 U.S. 163 (1996) ...................................................................... 9

Lege v. Union Carbide Corp., 366 So.3d 75 (La. App. 4 Cir. 5/12/21). ....................... 10

Smith v. Arizona, 602 U.S. 779 (2024) .................................................... 1, 2, 3, 4, 9, 11

State v. Green, 2025 WL 2027873 (Tenn. Crim. App. July 21, 2025). ....................... 11

State v. Hall-Haught, 569 P.3d 315 (Wash. 2025)...................................................... 11

State v. McElveen, 420 So.3d 1188 (La. 11/19/25). ..................................................... 10

State v. Morgan, 401 So.3d 650 (La. 2/25/25) ............................................................. 10

State v. Shea, 2024 WL 4115377 (Minn. Ct. App. 9/9/24) .......................................... 11

State v. Thomas, 334 A.3d 686 (Me. 2025).................................................................. 11

State v. West, 399 So.3d 405 (La. 1/28/25) ................................................................. 10

Sullivan v. Louisiana, 508 U.S. 275 (1993) .............................................................. 6, 8

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REPLY BRIEF FOR PETITIONER

Mr. McElveen agrees with the State’s concession that “the lower courts are

beginning to split” on the precise question this petition presents: whether Smith v.

Arizona, 602 U.S. 779 (2024), permits a “technical reviewer” who performed no

testing, observed no testing, and authored no report to relay an absent analyst’s

conclusions to the jury. BIO 22. The State identifies five states that have found this

to be a Confrontation Clause violation and four states (including Louisiana) that have

found the opposite. BIO 2-3. In light of this concession, this Court should grant review

to resolve the Louisiana First Circuit’s misapplication of Smith, as the protection of

Mr. McElveen’s constitutional rights should not be contingent upon geography.

Given the timing of the announcement of Smith, and the fact that no Louisiana

appellate court has fully considered the merits of the question presented with the

benefit of briefing, Mr. McElveen moves this Court to grant, vacate, and remand

(GVR) to the Louisiana Supreme Court prior to granting plenary review.

Alternatively, Mr. McElveen agrees with the State that this case presents the same

issue as the pending case of Busby v. Mississippi, No. 25-6885, and moves this Court

to consolidate those cases, grant certiorari and docket.

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I.

THE LOUISIANA FIRST CIRCUIT’S “TECHNICAL REVIEWER”

EXCEPTION DEEPENS THE EXISTING CIRCUIT SPLIT.

The State’s defense of the “technical reviewer” exception rests on a semantic

distinction that Smith v. Arizona explicitly rejects. By prioritizing a witness’ title over

his actual function, the Louisiana First Circuit has joined three other states in

creating a loophole that allows the State to introduce testimonial laboratory results

through a surrogate who lacks any percipient knowledge of the testing process.

Because technical reviewer Zachary Shawhan, like the surrogate in Smith, merely

reviewed a cold file after the fact, his testimony served as a prohibited conduit for the

hearsay conclusions of absent analysts, regardless of his title.

a.

A “technical reviewer” performs a function identical to that of a

third-party expert reviewing a cold file.

The Smith Court held that “a State may not introduce the testimonial out-ofcourt statements of a forensic analyst at trial through a surrogate analyst who did

not participate in their creation.” 602 U.S. at 803 (emphasis added). The State seizes

on the word “participate” but ignores what Smith meant by it, as the constitutional

violation turns on a witnesses’ function, rather than title. The Court used

“participate” to describe the difference between an analyst whose own observations

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and lab work generated a report and a surrogate analyst who merely “review[s]” or

“rel[ies]” on someone else’s “report and notes.” Id. at 790-91.

In this regard, the function of Shawhan and Gregory Longoni, the third-party

expert in Smith, is interchangeable. There is no dispute that Shawhan did not

perform or observe any testing and did not author the corresponding lab reports and

thus “could not answer about the testing and results in both Reports.” BIO 16. Like

Longoni, Shawhan reviewed the case file after the fact to determine whether two nontestifying analysts complied with the crime lab’s protocol in conducting the DNA

testing. The only difference between Shawhan and Longoni is that Shawhan was

employed by the same laboratory as the non-testifying analysts who performed the

testing. However, Shawhan did not observe or perform testing and did not author or

even sign the corresponding report. Thus, his functional role in this case was that he

reviewed paperwork generated by an absent analyst, which is exactly what Smith

prohibits.

Adopting the State’s position would essentially mean that Smith was wrongly

decided, as Longoni, also “review[ed]” the underlying analyst’s work to support his

“independent opinion.” Smith, 602 U.S. at 790. However, Smith found that this was

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unconstitutional because it allowed the State to introduce an absent analyst’s

conclusions through a witness who could not “convey what [the absent analyst] knew

or observed about the particular test and testing process he employed.” Id. at 786

(alterations and quotation marks omitted).

Smith makes clear that a Confrontation Clause violation occurs when a

witness adopts an absent analyst’s percipient observations without personal

knowledge of the underlying facts. This remains the case regardless of whether that

witness is an independent expert, a “technical reviewer,” or anyone else.

b. The State misreads Justice Sotomayor’s Bullcoming concurrence.

The State misuses Justice Sotomayor’s observation that Bullcoming “is not a

case in which the person testifying is a supervisor, reviewer, or someone else with a

personal, albeit limited, connection to the scientific test at issue.” BIO 1, 19 (quoting

Bullcoming v. New Mexico, 564 U.S. 647, 672 (Sotomayor, J., concurring in part). As

the following sentence makes clear, Justice Sotomayor was not intending to carve out

an exception for a technical reviewer, such as Shawhan, but contemplated a

fundamentally different witness: “It would be a different case if, for example, a

supervisor who observed an analyst conducting a test testified about the results or a

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report about such results.” 564 U.S. at 673 (emphasis added).

Justice Sotomayor’s concurrence lends no support to the State’s argument

because Shawhan observed nothing. He was not in the lab when F. Nicole Proctor

received the four initial swabs from the various pieces of recovered evidence.

Shawhan did not observe the chain of custody or condition in which those swabs were

received and did not observe Proctor extracting DNA from those swabs. Likewise, he

was not present when a DNA profile was extracted from the backpack swab and was

not present when an initial CODIS hit was generated. Shawhan was also not in the

lab when Proctor received Mr. McElveen’s buccal swab, extracted DNA from that

swab, and ran the PCR. He was not present when the genetic analyzer produced

electropherograms, or when Proctor and supervisor Tabitha Mizell interpreted those

electropherograms and authored their conclusions. Pet.App.69a. He simply read their

work product days, weeks, or months after the fact.

II. THE ERROR WAS NOT HARMLESS

The State concedes that “the DNA break in this case[] was the break towards

the identification.” BIO.App.175 (Lt. Foster’s Testimony); see BIO 13. It concedes that

Lt. Foster told the jury “[a]ll the evidence that we collected pointed to Mr. McElveen”

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and that “[o]nly Mr. BJ McElveen” was identified by the DNA results. BIO 13. Those

concessions are dispositive under Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), as

a verdict cannot have been “surely unattributable” to evidence that the State itself

characterized as “the break.”

The State’s contrary argument claims the supplemental DNA report and

Shawhan’s testimony were cumulative of Lt. Foster’s testimony about the original

DNA report and CODIS lead. BIO 25-26. But that argument has the harmless-error

analysis backwards in several ways. First, Lt. Foster’s testimony that the CODIS hit

“led to Mr. McElveen,” BIO.App.152, was itself hearsay relaying the conclusions of

non-testifying analysts. Bootstrapping one Confrontation Clause problem onto

another does not cure either. Whether or not Mr. McElveen objected to Lt. Foster’s

testimony in the trial court, that testimony cannot rehabilitate Shawhan’s surrogate

testimony for harmless-error purposes.

Second, the supplemental DNA report did far more than “confirm” the CODIS

lead. It generated the only evidence in the record that Mr. McElveen’s actual buccalswab DNA matched the backpack profile, and the only evidence quantifying that

match (the 2.69 billion to 13.7 billion likelihood ratio). Pet.App.114a-15a. Without

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Shawhan’s testimony, the jury heard no admissible evidence that Mr. McElveen’s

DNA was found on the backpack. The remaining circumstantial evidence (an

anonymous “BJ” tip and a New Orleans accent shared by hundreds of thousands of

people) is not the kind of evidence on which a jury could rationally convict beyond a

reasonable doubt for two counts of armed robbery.

Third, forensic testimony from a qualified DNA expert is materially different

than lay testimony from a police officer about an unconfirmed CODIS hit. As

Shawhan was qualified as a DNA expert, his testimony on the issue carried far more

weight than a police officer’s recounting. Indeed, the prosecution’s repeated

references to Shawhan’s testimony during closing arguments indicate that the State

knew the jury would have been more swayed by the forensic testimony of a “technical

reviewer”/DNA expert than a lay police officer.

The State also argues that the First Circuit properly applied the harmless

error test in concluding the verdict was surely unattributable to the admission of

Shawhan’s testimony. However, the First Circuit quoted the factors of Delaware v.

Van Arsdall, 475 U.S. 673 (1986), which governs harmlessness analysis when a

defendant’s right to impeach a witness is curtailed. Id. at 684. While the First Circuit

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ultimately concluded that Mr. McElveen’s verdicts were “surely unattributable to any

error in the admission of the supplemental test results and Mr. Shawhan’s related

testimony,” it did so by analyzing the Van Arsdall factors which include: the

importance of the testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of cross-examination

otherwise permitted, and the overall strength of the prosecution’s case. Van Arsdall,

475 U.S. at 684; App.22a. Under the standard enumerated in Chapman v. California,

386 U.S. 18 (1967), the proper inquiry is whether the State can prove “beyond a

reasonable doubt that the error complained of did not contribute to the verdict

obtained.” Chapman, 386 U.S. at 24. This Court has clarified that the critical inquiry

is whether the verdict rendered was surely unattributable to the error. Sullivan v.

Louisiana, 508 U.S. 275 (1993).

This case involves the wholesale admission of testimonial evidence in violation

of the Confrontation Clause. Under Chapman, the State bears the burden of proving

harmlessness beyond a reasonable doubt, and it cannot meet that burden on this

record.

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III.

THIS COURT SHOULD GRANT, VACATE, AND REMAND IN LIGHT

OF SMITH, OR, ALTERNATIVELY, CONSOLIDATE THIS MATTER

WITH BUSBY V. MISSISSIPPI AND GRANT REVIEW.

The State argues that since the First Circuit considered Smith, this is not an

appropriate case for a GVR. BIO 2. However, a GVR is “potentially appropriate”

where recent developments reveal a “reasonable probability that the decision below

rests upon a premise that the lower court would reject if given the opportunity for

further consideration.” Lawrence v. Chater, 516 U.S. 163, 167 (1996). A GVR is

appropriate in this case because the First Circuit lacked the benefit of full briefing on

the intervening authority, and the Louisiana Supreme Court has taken an

inconsistent approach in its application of Smith. As no Louisiana appellate court has

fully considered the merits of this issue with the benefit of briefing, a GVR is

necessary as it may “determine the ultimate outcome of the litigation.” Lawrence v.

Chater, 516 U.S. at 167-68.

The procedural history weighs in favor of a GVR, as Mr. McElveen’s appellant

brief was filed on May 20, 2024, and the State’s appellee brief was filed June 25, 2024.

Although Smith was decided four days before the State filed its brief, it was not raised

or distinguished in initial briefing to the First Circuit and neither party filed

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supplemental briefing prior to the First Circuit’s opinion, which was issued on

December 30, 2024. Thus, the First Circuit’s limited analysis of Smith was made

without the benefit of full briefing on the intervening law. Although Mr. McElveen

sought rehearing and argued the applicability of Smith, rehearing was summarily

denied, as appellate courts “generally do not grant rehearings to review issues raised

for the first time in the application for rehearing.” Lege v. Union Carbide Corp., 366

So.3d 75, 77 (La. App. 4 Cir. 5/12/21).

The Louisiana Supreme Court’s inconsistent handling of Smith further

confirms that a GVR is appropriate. Although the court declined review, it was by a

bare majority, with three justices voting to grant and docket. State v. McElveen, 420

So.3d 1188 (La. 11/19/25). And yet, earlier that year, the court remanded two cases

for reconsideration in light of Smith. See State v. Morgan, 401 So.3d 650 (La. 2/25/25),

State v. West, 399 So.3d 405 (La. 1/28/25). This establishes that the Louisiana

Supreme Court is not hostile to applying Smith to Mr. McElveen’s case, but rather

has never had a fair opportunity to consider Smith after full briefing and argument.

That is the precise scenario that a GVR is designed to remedy.

Should this Court determine that GVR is not appropriate, Mr. McElveen

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agrees with the State’s concession that there is a post-Smith split on this issue. Five

states have found that the testimony of a “technical reviewer” who performs and

observes no testing violates the Confrontation Clause: Commonwealth v. Walker, 350

A.3d 54 (Pa. 2026); Commonwealth v. Gordon, 266 N.E.3d 369 (Mass. 2025); State v.

Thomas, 334 A.3d 686 (Me. 2025); State v. Hall-Haught, 569 P.3d 315 (Wash. 2025);

and State v. Green, 2025 WL 2027873 (Tenn. Crim. App. July 21, 2025). On the other

side, two states have reached the opposite conclusion: Dunlap v. State, 2025 WL

1039557 (Md. App. Ct. 4/8/25), cert. denied 491 Md. 645; State v. Shea, 2024 WL

4115377 (Minn. Ct. App. 9/9/24). While Mississippi (and Louisiana) also determined

there no Confrontation Clause violation occurs from the testimony of a “technical

reviewer,” both cases are now pending before this Court. See Busby v. Mississippi,

No. 25-6885.

Despite acknowledging the split, the State argues that this question warrants

“further percolation.” BIO 22. Mr. McElveen disagrees, as less than two years of postSmith percolation has revealed a division amongst nine states that will only deepen

with time. Mr. McElveen agrees with the State that this case presents the same issue

as Busby and urges this Court to consolidate the cases and grant review.

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CONCLUSION

For these reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted:

April 29, 2026

/S/ JANE HOGAN

_________________________________

JANE C. HOGAN, ESQ.

HOGAN ATTORNEYS

310 N CHERRY ST

HAMMOND, LA 70401

PHONE: (985) 542-7730

EMAIL: JANE@HOGANATTORNEYS.COM