A Criminal Enterprise

All Publicity is Good Publicity? Maybe. But We’d Rather See Serious Engagement.

Posted in Uncategorized by Robert Smith on August 27, 2009

The Crime and Consequences Blog, which is sponsored by the Criminal Justice Legal Foundation, commented on our Death of Death-qualification article, which was discussed in our last post. Here is their post:

“Arguing For An End to “Death-Qualification” of Jurors: CrimProf Blog posts the abstract and a link to G. Ben Cohen and Robert J. Smith’s SSRN article The Death of Death Qualification. Cohen, of The Capital Appeals Project, and Smith of The Charles Hamilton Houston Institute for Race and Justice, argue that as the Framers understood it, ‘jury review’ power provided the people with a ‘check’ against the government’s judicial function. They argue that this idea has diminished over time and the Framer’s understanding is no longer consistent with a modern jury, particularly in cases involving the “death-qualification” of jurors. They believe that “a proper historical understanding of the Sixth Amendment right to a jury trial requires that [death-qualification] be put to rest.” Given the affiliations of both authors, their argument hardly comes as a surprise… ”

The last line stings. Not because it isn’t fair. We are criminal defense lawyers. We do represent death-sentenced clients. Pointing out potential bias is fair-play.  But there is a difference between scholarship and advocacy, and we hope to walk that line carefully. What I would love to see is for someone at the Crime and Consequences Blog to read the article and respond on the merits. Is historical accuracy the right methodology? Is there another version of the history that we d0 not present? Are there competing concerns that we should have discussed?

Those are the type of critiques that we hope to see in the future.

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