Whether a substitute expert witness's testimony based on an absent analyst's testimonial statements violates a criminal defendant's Confrontation Clause rights under the Sixth Amendment

No question identified. : APPLICATION To the Honorable Clarence Thomas, Associate Justice of the United States Supreme Court and Circuit Justice for the Eleventh Circuit: Pursuant to Rule 13.5 of the Rules of this Court and 28 U.S.C. § 2101(0), Applicant, George Sharrod Johns, respectfully requests a 60-day extension of time, up to and including January 9, 2026, within which to file a petition for a writ of certiorari to review the judgment of the Supreme Court of Georgia in this case. 1. The Supreme Court of Georgia issued its decision on August 12, 2025. See Johns v. State, 919 S.E.2d 588 (Ga. 2025), App. Unless extended, the time to file a petition for a writ of certiorari will expire on November 10, 2025. This application is being filed more than ten days before Applicant’s petition is currently due. See 8. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1257(a). 2. Mr. Johns was convicted in the Superior Court of Fulton County, Georgia, of malice murder, OCGA § 16-5-1, and other offenses on December 13, 2023. App. at 1a. During trial, Mr. Johns objected to the testimony of an expert in forensic pathology, Dr. Karen Sullivan, as a violation of his rights under the Confrontation Clause of the Sixth Amendment. Dr. Sullivan had not conducted the original autopsy of the victim and instead testified as a substitute medical examiner. The Superior Court denied Mr. Johns’s motion for a new trial, see Order Denying Motion for New Trial, State v. Johns, No. 235C186170 (Ga. Sup. Ct. Sept. 24, 2024); on direct appeal, the Supreme Court of Georgia affirmed the Superior Court on all grounds, including on the Confrontation Clause issue. App. at 15a, 17a. 3. The Supreme Court of Georgia held that Dr. Sullivan’s testimony did not violate the Confrontation Clause because she conducted a peer review of the original pathologist's autopsy, reviewing all the original case information. But, the State never sought to admit the original pathologist’s materials and the original pathologist did not testify. 4. The Supreme Court of Georgia’s judgment raises important constitutional issues warranting this Court’s review. In Smith v. Arizona, this Court held, “[w]hen an expert conveys an absent analyst’s statements in support of his opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.” 602 U.S. 779, 783 (2024). The Court held that if those statements are also testimonial, the Confrontation Clause will bar their admission. Id. 5. The judgment of the Supreme Court of Georgia directly conflicts with the Court’s holding in Smith. There, the Court held that a State’s substitute expert’s testimony violated the Confrontation Clause because he could only provide a professional opinion because “he accepted the truth of what [the first analyst] had reported about her work ... if [the first analyst] had lied about all those matters, [the second expert’s] opinion would have counted for nothing .” Smith, 602 U.S. at 798. Same here, Dr. Sullivan “used the facts contained in [the] preliminary report, along with the autopsy photographs, to inform her expert opinion... .” App. at 16a—17a. In both cases, the opinions of the second expert were “predicated on the truth of [the first analyst’s] factual statements,” and require that the predicate statements come in for the truth asserted.! Smith, 602 U.S. at 781. In both cases, the original maker of the essential statements was nowhere to be found. See id. at 798. Here as in Smith, a state “wants to end run all [this Court has] held the Confrontation Clause to require.” Id. at 799. 6. Review is also warranted because other states continue to resist the holding in Smith. While some states, such as Maine, have disallowed expert testimony that relies on the truth of another analyst’s assertions, State v. Thomas, 334 A.3d 686, 703-4 (Me. 2025), others continue to permit such testimony even after Smith. Two Courts of Appeals of Tex