A divided Court of Appeals panel has ruled that a lawyer who fails to advance novel legal arguments at trial challenging existing law is not providing ineffective counsel.

Law enforcement charged Douglas County resident Timothy Charles Houser with patronizing a 16-year-old prostitute, to which Houser countered that he believed the girl was at least 18, according to court documents. Prosecutors objected on the grounds that state law provides “no defense that the defendant did not know the child’s age” in prostitution cases. The trial court agreed, and prohibited Houser from asserting that defense at trial.

Although Houser said he did not have sex with her because he could not prove her age and only paid her “for her time,” prosecutors still deemed that that a criminal offense. A jury convicted Houser and he received a 30-day jail sentence and sex offender supervised probation. The court subsequently ordered him to serve two years to life in prison after he violated conditions of his probation.

After one panel of the Court of Appeals upheld his conviction, Houser appealed a second time, raising arguments of ineffective counsel. Specifically, he claimed that his attorney should have challenged the constitutionality of the ignorance-of-age prohibition, argued his conviction was a violation of equal protection under the law, and claimed the underlying offense of patronizing a child prostitute as unconstitutionally vague.

The second appellate panel, which ruled on Thursday, determined that procedurally it could only weigh in on the vagueness argument. Houser contended that because the law defined “performing or offering or agreeing to perform” sexual acts as illegal for the child, it was unclear how an adult could avoid liability. For example, if a child prostitute “agreed to perform” sex in a Craigslist ad, merely reading the offer could merit a conviction.

The court rejected that representation, deciding that the crime of patronizing a prostitute implicated anyone who participated in such acts. However, to the question of whether Houser’s attorney provided ineffective assistance by failing to challenge the constitutionality of that and other statutes, the panel split 2-1.

While Houser’s attorney at trial pointed to a conflicting Colorado law that did allow for an ignorance-of-age defense for children older than 15, Houser claimed on appeal that the attorney should have gone further and challenged the ignorance-of-age prohibition in prostitution cases as unconstitutional.

“Houser’s counsel was not ineffective for not challenging the constitutionality,” wrote Judge Lino S. Lipinsky de Orlov, “and instead making the reasonable strategic choice to argue that the statute did not apply to Houser. If successful, the argument would have allowed Houser to raise the defense of reasonable mistake of age.”

The majority noted that the standard for ineffective counsel involved establishing whether their performance was “outside the range of professionally competent assistance” that resulted in a prejudice against the defendant. While it is possible for an attorney to be ineffective for failing to present an argument that had no basis in precedent, the court said, a lawyer’s strategic choices are “virtually unchallengeable.”

“Finding that an attorney commits malpractice by not seeking this type of change in the law would flood the courts with new professional negligence lawsuits, as well as novel claims filed by attorneys practicing defensive lawyering,” wrote Lipinsky. He added that at the time of Houser’s trial, there was no definitive ruling from the Court of Appeals about which ignorance-of-age rule applied to his crime.

Judge Michael H. Berger in his dissent called the majority’s decision a “new bright line rule.” He decried the notion that a lawyer who fails to argue points lacking precedent can therefore never commit ineffective assistance.

“[T]he fact that the burden is daunting, and that most such challenges will fail for any number of reasons, is not a warrant for creating, as the majority has done, a rule that prohibits, as a matter of law, all such challenges,” Berger wrote.

Lipinsky disputed that characterization, countering that allowing such claims from defendants could trigger appeals even for arguments that ran “directly contrary to the law at the time of the trial.”

Faisal Salahuddin, a criminal defense attorney at Frank & Salahuddin in Denver, agreed with the dissent, saying that Houser should have been able to present arguments challenging the constitutionality of the relevant laws. To the majority’s worry about a “flood” of lawsuits from defendants challenging their lawyers’ work, “the question must be put back to them, since when is our justice system more concerned with a comfortable judge’s workload than ensuring that justice is done to the individual?” asked Salahuddin.

“Before becoming a lawyer, I would have thought that question would necessarily resolve in favor of the accused.”

Aurora defense attorney Lain A. Lawrence also saw merit in the dissent, observing that a lawyer has an obligation to provide zealous representation, but not necessarily to raise arguments that are unlikely to prevail.

“I don’t want to say there is a set formula to litigation. Litigation, criminal in particular, is not formulaic. You have to pick and choose the battles you fight,” he said, adding that arguing before a judge was different than making a case to a jury. “You have to careful with a jury, if you argue anything under the sun to them you may lose credibility and hurt your good argument by arguing nonsense arguments.”

The appellate panel did, however, order the trial court to hear Houser’s argument that his lawyer provided ineffective assistance by not raising the “outrageous conduct” of prosecutors. Houser’s first defense attorney, Charles Leidner, allegedly told the child’s mother that he would “drag [her] over the coals, embarrass her and eat her alive” if the child testified. Houser received a new lawyer, but he maintained that the prosecution pressured Leidner to withdraw, conduct which could have resulted in a dismissal of charges had his second lawyer argued the point.

Berger added in his dissent that he would have ordered a review of Houser’s lifetime sentence, calling it disproportionate to the offense given there was no established intent for his patronizing of a child prostitute. 

The case is People v. Houser.