Utah Court of Appeals hears challenge to defense strategy in State v. Fitzwater; panel questions unanimity and possession instructions

The Utah Court of Appeals heard oral argument in State v. Fitzwater over whether trial counsel provided ineffective assistance by introducing testimony and statements from a co-defendant identified as Aiken, and over related jury-unanimity and firearm-possession instructions.

The argument focused on whether counsel’s decision to put Aiken’s statements before the jury—statements that at times blamed Fitzwater—fell below prevailing professional norms and, if so, whether any deficiency was prejudicial under Strickland v. Washington. Appellant’s counsel argued that ‘‘we as defense lawyers do not make the state’s case for it,’’ contending the inclusion of Aiken’s inculpatory statements was a textbook example of deficient performance. Daniel Boyer, arguing for the State, said counsel is ‘‘strongly presumed to have rendered adequate assistance’’ and defended the record as sufficient to support conviction even if Aiken’s statements were removed from consideration.

Why the issue matters: the court must decide two linked questions in the appeal. First, whether counsel’s choice to elicit or not exclude Aiken’s statements was so objectively unreasonable that it violated the Sixth Amendment. Second, whether any error was prejudicial—that is, whether there is a reasonable probability the result would have been different absent the challenged conduct.…