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Petitioner, V No. ______ IN THE Supreme Court of the United States TERESA ANN JOHNSON, Petitioner, v. STATE OF ALASKA, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE OF ALASKA PETITION FOR A WRIT OF CERTIORARI HARI SANTHANAM Counsel of Record KIRKLAND & ELLIS LLP 300 North LaSalle Street Chicago, Illinois 60654 (312) 862-2000 [email protected] Counsel for Petitioner February 24, 2020 QUESTIONS PRESENTED In Bullcoming v. New Mexico, 564 U.S. 647, 663 (2011), this Court held that the Confrontation Clause of the Sixth Amendment prohibits the prosecution in a criminal case from introducing into evidence an absent analyst’s report through a surrogate expert. Bullcoming, however, did not address a number of scenarios, including where “the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue” or “an expert witness [i]s asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” Id. at 672–73 (Sotomayor, J., concurring). This Court sought to address some of these issues in Williams v. Illinois, 567 U.S. 50 (2012). But as two Justices of this Court have recognized, Williams “yielded no majority and its various opinions have sown confusion in courts across the country.” Stuart v. Alabama, 139 S. Ct. 36, 37 (2018) (Gorsuch & Sotomayor, JJ., dissenting). Indeed, since Williams, lower courts have widely diverged on whether, and to what extent, surrogate expert testimony is permissible. This case raises the following questions: 1. Whether the Confrontation Clause prohibits the prosecution from introducing into evidence at trial a certified lab report reflecting statements of nontestifying analysts through a surrogate expert who, although a supervisor at the lab, merely reviewed the report and results and did not conduct or observe any of the underlying tests; and 2. Whether the Confrontation Clause prohibits the surrogate expert from testifying at trial about the underlying tests, including the particular samples tested, procedures followed, and results reached. (i) ii PARTIES TO THE PROCEEDING Petitioner is Teresa Ann Johnson. Respondent is the State of Alaska. No party is a corporation. RELATED PROCEEDINGS This case arises from the following proceedings in Alaska state courts: State v. Johnson, No. 3PA-16-01291CR (Alaska Sup. Ct. Nov. 15, 2016) (entering judgment of conviction following jury trial); Johnson v. State, No. A-12744 (Alaska Ct. App. Oct. 23, 2019) (affirming trial court judgment); and Johnson v. State, No. S-17563 (Alaska Jan. 29, 2020) (denying discretionary review). There are no other proceedings in state or federal trial or appellate courts or in this Court that are directly related to this case. iii TABLE OF CONTENTS Page Questions Presented .................................................... i Parties to the Proceeding ............................................ ii Related Proceedings .................................................... ii Table of Authorities ..................................................... v Introduction ................................................................. 1 Opinions Below ............................................................ 2 Jurisdiction .................................................................. 3 Relevant Constitutional Provision ............................. 3 Statement of the Case ................................................. 3 Reasons for Granting the Writ ................................... 8 I. Lower Courts Are Intractably Divided and Need this Court’s Guidance Regarding Whether, and to What Extent, the Confrontation Clause Permits Surrogate Expert Testimony. ....................................... 8 II. Unless this Court Intervenes, the Loopholes Lower Courts Have Created for Supervisor Testimony and So-Called “Independent Opinions” Threaten to Swallow the Confrontation Clause. ............................... 16 III. This Petition Presents an Ideal Vehicle for Addressing the Boundaries of Surrogate Expert Testimony. ..................................... 20 Conclusion ................................................................. 24 iv TABLE OF CONTENTS—Continued Page Appendix A: Alaska Supreme Court’s Order Denying Petition for Hearing (Jan. 29, 2020) .............. 1a Appendix B: Opinion of Court of Appeals of Alaska (Oct. 23, 2019) ................................................. 3a Appendix C: Trial Court’s Order Regarding Expert Testimony (Sept. 19, 2016) ............................. 7a Appendix D: Excerpt of Trial Court’s Judgment (Oct. 11, 2016) ............................................... 12a Appendix E: Certified Report of the Washington State Patrol Toxicology Laboratory (July 27, 2017) .............................................. 18a Appendix F: Excerpt of Transcript of Proceedings Before Trial Court ........................................ 23a v TABLE OF AUTHORITIES Page(s) Cases Alejandro-Alvarez v. State, 587 S.W.3d 269 (Ark. 2019) ................................... 12 Bullcoming v. New Mexico, 564 U.S. 647 (2011) ....................................... passim Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013) .......... 14, 19 Carrington v. District of Columbia, 77 A.3d 999 (D.C. 2013) ......................................... 12 City of Seattle v. Holifield, 240 P.3d 1162 (Wash. 2010) .................................. 23 Commonwealth v. Reavis, 992 N.E.2d 304 (Mass. 2013) ........................... 12, 13 Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013) ..................................... 13, 14 Crawford v. Washington, 541 U.S. 36 (2004) .................................................. 18 Davidson v. State, No. 58459, 2013 WL 1458654 (Nev. Apr. 9, 2013) ................................................. 12 Derr v. State, 73 A.3d 254 (Md. 2013) .......................................... 15 Disharoon v. State, 727 S.E.2d 465 (Ga. 2012) ...................................... 13 Galloway v. State, 122 So.3d 614 (Miss. 2013) .................................... 13 vi TABLE OF AUTHORITIES—Continued Page(s) Marshall v. People, 309 P.3d 943 (Colo. 2013) ...................................... 13 Martin v State, 60 A.3d 1100 (Del. 2013) .................................. 11, 13 McCord v. State, 390 P.3d 1184 (Alaska Ct. App. 2017) ... 2, 14, 18, 19 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) ................................................ 22 Ohio v. Roberts, 448 U.S. 56 (1980) .................................................. 18 Paredes v. State, 462 S.W.3d 510 (Tex. Crim. App. 2015) .......... 14, 19 People v. John, 52 N.E.3d 1114 (N.Y. 2016) ................................... 12 People v. Lopez, 286 P.3d 469 (Cal. 2012) ........................................ 15 Robbins v. State, 449 P.3d 1111 (Alaska Ct. App. 2019) ............... 8, 18 State v. Ahmach, No. C00627921 (King County Dist. Ct., Wash. Jan. 30, 2008) ........................................ 23, 24 State v. Bowman, 337 S.W.3d 679 (Mo. 2011) .................................... 23 State v. Brewington, 743 S.E.2d 626 (N.C. 2013) ........................ 13, 14, 19 State v. Craven, 744 S.E.2d 458 (N.C. 2013) .............................. 14, 19 vii TABLE OF AUTHORITIES—Continued Page(s) State v. Deadwiller, 834 N.W.2d 362 (Wis. 2013) .................................. 15 State v. Griep, 863 N.W.2d 567 (Wis. 2015) ...................... 13, 14, 18 State v. Hall, 419 P.3d 1042 (Idaho 2018) ................................... 13 State v. Lui, 315 P.3d 493 (Wash. 2014) .................................... 15 State v. McLeod, 66 A.3d 1221 (N.H. 2013) ................................. 13, 18 State v. Michaels, 95 A.3d 648 (N.J. 2014) .......................................... 13 State v. Navarette, 294 P.3d 435 (N.M. 2013) ...................................... 13 State v. Stillwell, No. 2017-0361, 2019 WL 4455041 (N.H. Sept. 18, 2019) .............................................. 15 State v. Walker, 212 A.3d 1244 (Conn. 2019) ............................... 9, 12 Stuart v. Alabama, 139 S. Ct. 36 (2018) .................................................. i United States v. Katso, 74 M.J. 273 (C.A.A.F. 2015) ................................... 13 United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011) ............................ 12, 13 United States v. Murray, 540 F. App’x 918 (11th Cir. 2013) .......................... 15 viii TABLE OF AUTHORITIES—Continued Page(s) United States v. Shanton, 513 F. App’x. 265 (4th Cir. 2013) ........................... 15 United States v. Turner, 709 F.3d 1187 (7th Cir. 2013) ............................ 9, 13 Williams v. Illinois, 567 U.S. 50 (2012) .......................................... passim Young v. United States, 63 A.3d 1033 (D.C. 2013) ................................. 11, 12 Constitutional Provisions U.S. Const. amend VI .................................................. 3 Statutes 28 U.S.C. § 1257(a) ...................................................... 3 ALASKA STAT. § 28.35.030(n) ....................................... 3 WASH. ADMIN. CODE § 448-14-010 .............................. 5 WASH. ADMIN. CODE § 448-14-020 .............................. 5 WASH. ADMIN. CODE § 448-14-030 .............................. 5 WASH. REV. CODE § 43.43.670 ............................... 4, 21 WASH. REV. CODE § 46.61.506(3) ................................. 5 Other Authorities Brief of Amicus Curiae National Association of Criminal Defense Lawyers et al., Bullcoming
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