Court of Appeals hears challenge to trial counsel’s conduct in McCraw appeal

The Utah Court of Appeals heard oral argument in City v. McCraw over whether defense counsel’s performance at a short justice-court trial deprived the defendant of effective assistance of counsel.

The appeal centers on whether the lack of adversarial testing at trial — a roughly four-minute proceeding with proffers from three witnesses, no cross-examination, and no opening or closing arguments — rendered the conviction unreliable. If the appeals court finds counsel’s conduct rose to the level of constructive denial of counsel, the ruling could require retrials in similar cases and affect how counsel handle absent or noncooperative clients.

Dylan Carlson, appearing for appellant McCraw, told the panel that trial counsel “took no actions throughout the entirety of her trial,” listing a lack of opening statement, objections, cross-examination and closing argument. Carlson said those omissions were not merely truncated strategy but “a failure of adversarial testing” that undermined the reliability of the verdict.

Counsel for the City, Randall McCune, responded that trial counsel faced real-time tactical choices with an absent or noncommunicative client. McCune said defense counsel had sought a shortened proceeding and proffer — a decision aimed at minimizing the risk that witnesses would volunteer prejudicial information in the defendant’s absence. McCune told the panel that the court and the prosecutor were reasonable to treat the proffered evidence as reliable and that reopening evidence risked exposing additional prejudicial testimony.

Judges probed counsel on multiple fronts. The panel asked whether a counsel’s silence can be a reasonable trial strategy, whether counsel should have moved for a directed verdict or asked the judge to reopen proof when an element (ownership of broken plates) was not established, and whether any error was structural (presumed prejudicial) or required demonstration of specific prejudice.

Carlson pointed to what he described as a perfunctory trial record — proffered testimony from three witnesses, a one-sentence verdict and no trial findings — and urged the court to treat the failure to test the prosecution’s case as objectively unreasonable. He also raised an overbreadth/unconstitutionality concern about the statutory language in the City’s charge and argued there were real-world scenarios in which the ordinance could criminalize constitutionally protected conduct.

McCune emphasized that trial counsel’s choices must be judged on reasonableness at the time and that counsel may reasonably prefer a proffer where a judge is likely to reopen evidence and elicit prejudicial matter from witnesses. McCune said the defendant’s homelessness and failure to appear for hearings complicated counsel’s tactical options and that the risk calculus could make silence a reasonable choice in the moment.

The Court of Appeals said it would take the matter under advisement and issue a written decision.