Can trial counsel's jury selection decisions constitute ineffective assistance? State v. Litherland Explained

In State v. Litherland, the Utah Supreme Court addressed when trial counsel’s decisions during jury selection can constitute ineffective assistance of counsel. The case provides important guidance for appellate practitioners challenging counsel’s voir dire performance.

Background and Facts

Christopher Litherland was convicted of rape and forcible sexual abuse involving a 16-year-old victim. During jury selection in the small community of Monticello, two prospective jurors raised potential bias concerns. Melvin Dalton expressed that his “parental feelings” for his own daughter might make him inclined to believe the victim’s testimony. Tamara Barton had attended a meeting where someone discussed the assault and identified Litherland as the perpetrator. The trial court twice offered defense counsel the opportunity to dismiss Dalton, but counsel declined. Counsel also considered challenging Barton but ultimately chose not to remove either juror.

Key Legal Issues

The case presented two main issues: whether trial counsel’s failure to challenge these potentially biased jurors constituted ineffective assistance of counsel under Strickland v. Washington, and whether the trial court committed plain error by not dismissing the jurors sua sponte despite defense counsel’s strategic choice to retain them.

Court’s Analysis and Holding

The Utah Supreme Court established strong presumptions protecting trial counsel’s jury selection decisions. The court held that because jury selection is “more art than science” and inherently subjective, counsel’s decision not to remove a particular juror is presumed to be a conscious strategic choice. This presumption can only be rebutted by showing: (1) counsel was inattentive during voir dire, (2) a juror expressed bias so strong that no plausible strategy could justify retaining them, or (3) other specific evidence that counsel’s choice was not plausibly justifiable. The court found none of these circumstances present and affirmed the convictions.

Practice Implications

This decision significantly strengthens the presumption that trial counsel’s jury selection decisions are strategic and reasonable. Practitioners challenging such decisions must present compelling evidence that no plausible justification existed for counsel’s choices. The court also clarified the relationship between Rule 23B and ineffective assistance claims, placing the burden on defendants to ensure an adequate record or seek remand for additional fact-finding.