Utah Supreme Court hears arguments in Johnson v. State over flawed jury instruction, appellate counsel performance

At an oral argument before the Utah Supreme Court, justices considered whether an earlier Court of Appeals ruling finding an erroneous jury instruction in Johnson v. State should carry precedential weight and whether appellate counsel’s failure to press that instruction on appeal amounted to ineffective assistance.

The case matters because petitioner Vincent Johnson (identified in the record as the defendant) has been serving a murder sentence for nearly two decades and contends that a mistaken jury instruction on the lesser-included offense of homicide by assault deprived him of a realistic path to a lesser conviction. Defense counsel argued that the erroneous instruction made the lesser option functionally indistinguishable from the murder charge and that, had the jury been properly instructed, there is a reasonable probability at least one juror would have reached a lesser verdict.

Defense counsel (identified in the transcript only as "defense counsel") told the court that "my client, Mr. Johnson, has been incarcerated for almost 20 years now" and urged the justices to credit a Court of Appeals decision that previously found the instruction undermined confidence in the verdict. Counsel said the earlier appellate panel had reached the underlying merits after a…