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"There are no frivolous issues..."

This article by Diane Jennings on death penalty delays is on the Bellingham Herald site today.  It was originally in the Dallas Morning News, but it's behind the DMN paywall there.  The story includes this gem of a quote:

"There are no frivolous issues when you're trying to save another man's life," said Patrick Metze, director of the Capital Punishment Clinic at Texas Tech School of Law.
But of course there are frivolous issues, and burying the courts with frivolous pleadings is ethically forbidden, not ethically required.

Further down the story, Texas prosecutor Chip Wilkinson is quoted:

An issue that Wilkinson said "puts terror in the hearts" of appellate attorneys is whether defendants are entitled to "effective" assistance of counsel on a state writ of habeas corpus. Under current law, attorneys must be "effective" at trial, meaning their entire performance during the trial can be reviewed and used as a basis for reversal.

If that same performance measure is demanded for a writ seeking re-examination of the entire case, "you're adding an entirely new level of review," Wilkinson said.

To date, it is solidly established law that the constitutional right to counsel, and hence the right to effective counsel, ends with the first appeal. Effectiveness review after that creates the danger of an unending spiral of every lawyer litigating the effectiveness of the lawyer before him.  The recent grant of certiorari in Martinez v. Ryan is a troubling indicator the Supreme Court might be considering tinkering with this established law.

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