More Truth About Fear

When I pointed yesterday to the fact that Kelly Siegler’s advice to other prosecutors to “make people afraid” it was intended to be a Sunday-afternoon placeholder until I had time to deal with Kelly’s admonishment in more depth.

Judge Caprice Cosper says that there are people whom we punish because we’re mad at them, and people whom we punish because we’re afraid of them. Make people afraid isn’t about empowering them to act on their fear. It’s not “play on people’s fears” but “make people afraid.” Manipulate them, in other words, by causing them to feel fear that they wouldn’t otherwise feel.

I’ve written before about The Power of Fear (how governments, through their prosecutors, use fear to increase their power), The Opposite of Fear (how the People, through their defense lawyers, have to use something other than fear to counter the government’s use of fear and thereby preserve their power), Spreading Fear or Safety (how governments maximize power by trying to convince us that the government is doing all it can to keep us safe, but that we aren’t entirely safe), and The Abandonment of American Ideals (about how our fear is turning America into something else). So the point of yesterday’s post was not that I was surprised that prosecutors use fear to get juries to do what they want.

Nor was the point that Kelly Siegler is bad for manipulating jurors with fear. Manipulating people with fear is what governments do, and manipulating jurors with fear is what prosecutors do. The entire criminal justice system is based on fear. People aren’t going to convict a person, give him a criminal record for life, or put him in prison, much less sentence him to death, motivated by anything else. Make people afraid. If Pat Lykos expects to do the job of Harris County District Attorney, she’d better make that a part of her being.

I’ve always viewed prosecutors as people who are themselves motivated by fear: prosecutor, scared of the world, comes into courtroom and shares his fear with twelve jurors. Fear to prosecutors is like water to fish. One reason Kelly’s injunction got my attention is because I’ve never heard the fish talking about the water before. Maybe they do — maybe most prosecutors recognize that juries convict and sentence because of fear, and that by making people afraid (or more afraid) they increase their chances of improving their stats. Maybe when ordinary prosecutors get together they talk frankly about how best to make jurors afraid. Make people afraid. Maybe it goes without saying.

But if it went without saying, why would Kelly have said it?

Maybe Kelly has knowledge about how to motivate jurors — make them afraid — that other prosecutors don’t share, or at least can’t articulate. If so, she should be commended for her insight. It wouldn’t surprise me if that insight were one of the things that make Kelly a particularly effective prosecutor (where effectiveness is measured by win/loss ratios and length of sentences).

All trial lawyers are deliberate or accidental students of human nature. Some (by no means most) defense lawyers purposefully study the why of advocacy as well as the how, traveling far afield from the explicit study of trial lawyering to learn or figure out what makes people do what they do, and thereby become better trial lawyers. I hadn’t given much thought to whether some prosecutors do the same; I suppose there’s no reason that they shouldn’t.

What’s really important about make people afraid, though, is not what it reveals to us defense lawyers about the working of the prosecutorial mind.

What matters is that people — jurors — know about it. More on that tomorrow.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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17 Responses to More Truth About Fear

  1. Jigmeister says:

    Mark,

    Your right, but only to a point. Fear is a healthy and natural motivation. Humans are carnivorious animals prone to violent tendencies, with a hightened sense of survival. I wish it wasn’t so, but it is.

    Civilization/society requires that we subdue that violent tendency. When some can’t do that, they are removed.

    I am not arguing about what punishment is appropriate, but segregation is often not only appropriate but necessary. Look at Nenno or this guy that microwaved his daughter, or any number of other circumstances where one hurts another.
    That justifiably scares people and its not hard to argue that it should. I concede that it may be over done.

    I wish we could medically remove the gene or whatever it is that makes mankind violent, but we aren’t anywhere close. Until then, we will continue to scare juries into removing those that can’t subdue that violent nature.

  2. Mark Bennett says:

    Jigmeister,

    Thanks as always for the thoughtful and thought-provoking comment.

    Our fear of crime is not healthy and it’s not natural. It’s vastly overblown. It’s in the government’s and the media’s interest that we have an exaggerated sense of danger, but the world really doesn’t have to be nearly as frightening a place as most people believe.

    I agree that there are some people who are just flat-out scary and need to be incapacitated; I tried to take this notion into account in my post.

    If someone is really scary, play on that fear. The plain facts of the case will scare the jury and the prosecutor won’t have to make people afraid.

    The truth is that most cases are about non-violent crime; in most cases there’s nothing at all intrinsically scary about the accused or the offense. Even in many cases involving violent transgressions, the crimes are clearly one-off (the “one good murder” rule). The prosecutor has to either use our already-existing unhealthy, unnatural fear or manufacture fear.

    Say, “most people will never be victims of violent crime” and the frightened people will say “most people who are victims of violent crime don’t think they will be.” Sure, but so what? Most people will still never be victims of violent crime.

  3. AHCL says:

    I agree with what Jigmeister said.

    I think it is also very valid that in cases involving violent offenders (which are pretty much the only types of cases that Kelly tries), that jurors SHOULD be afraid. As you and I discussed (Off Blog) today, I feel that “fear” and making a jury understand how scary a scenario might have been for a Complainant is a legitimate consideration for juries.

    What Bernstein didn’t report in his article was that also in Kelly’s notes (next to “make them afraid”) was the phrase “make them proud”, which she said meant “make the jury proud of you for the job you’ve done representing the State of Texas”. I suppose it wasn’t anti-Kelly enough to include in the article.

    As a theoretical debate, are you not trying to make your readers AFRAID of Kelly when you use terms like “manipulate a jury” or “increase their stats”? Take a deep breath before you respond. You are trying to make people see your side of the argument by causing them to fear the prosecutors as over-zealous lawyers that are seeking convictions for the wrong reasons, aren’t you? I’m not faulting you. You are trying to get people to agree with you.

    I think in the end that Judge Cosper may have gotten it right. I think prosecution and all laws in general are based upon anger AND fear. Some more fear than anger, and vice versa. Do we ticket jaywalkers because we’re scared of them? No. We do it because they anger us when they step in front of our cars. I guess you could say we are AFRAID that we might run them over. It is just a matter of degree.

    All laws originated for some reason, whether it be codified morality, or just legislators trying to preserve a way of life that they believe in.

    You’ve picked an extremely broad topic tonight.

  4. Mark Bennett says:

    AHCL,

    No, I’m not trying to make my readers afraid of Kelly. Out of curiosity: did you skip my fourth paragraph entirely?

    Since I’m not *ahem* stumping for a candidate, I truly don’t care whether people agree with me. You’ll see the truth when you’re ready.

    Believe it or not, this blog existed before December 27, 2007, and will continue to exist after November whatever, 2008. As you can tell from the internal cites, this was a broad topic of the blog all along.

    It ain’t about Kelly. Here, she just provides us with an excellent teaching point.

    More on this, as well as the relationship of anger to fear, perhaps, . . . tomorrow.

  5. I think a mixtue of things discussed here are true. For one, let’s assume that the government set up through prosecutors is a system of fear. Let us take the drunk driving laws. The point of drunk driving laws is deterrence. There are tens of thousands of alcohol related fatalities every year. Is every one of the hundreds of thousands, if not millions+ person pulled over for a DUI someone that could have killed somebody? No. Of course not. Some DUI cases involve drivers who are either a block away from home or who have already arrived home. Fear induces to a jury why they should care about any drunk driving case, why a drunk driving case is serious–because that person had poor judgment that could have made things worse.

    That’s an argument assuming that the criminal justice system is set up to induce fear.

    However, I disagree with that contention. In a Domestic Violence case, a jury is not thinking–“gee, this could happen to me!”, or “I could be the next victim,” because the crime is between husband and wife, or boyfriend or girlfriend, not to a complete stranger. There, they think of guilt or innocence. “Did it actually happen?” is the question in that type of case. I think that question persists in most cases.

    Western Justice

  6. PJ says:

    Whoa, slow down. Either you’ve inadvertently blurred the line between the descriptive and normative, or you believe juries should make guilt-innocence determinations based on fear rather than evidence (or at least that prosecutors should try to get to them act irrationally on fear).

    You say, “Nor was the point that Kelly Siegler is bad for manipulating jurors with fear. Manipulating people with fear is what governments do, and manipulating jurors with fear is what prosecutors do.”

    That’s all true as a descriptive matter. (However, it’s also true as a descriptive matter that Siegler violates the law when she does so and that she does not understand a prosecutor’s job responsibilities as laid out in Article 2.01 of the Code of Criminal Procedure. Whether any of this makes her “bad,” is, of course, a normative question. As you can probably guess, I think it does. Maybe not a bad person, but at least a bad prosecutor.)

    You continue, “The entire criminal justice system is based on fear. People aren‚Äôt going to convict a person, give him a criminal record for life, or put him in prison, much less sentence him to death, motivated by anything else.”

    I still take you as being descriptive here, but I don’t agree that jurors will convict only due to fear. Jurors will also convict because people–particularly Americans (and even more particularly Southern Americans)–are obedient and subservient to power, i.e., the State, regardless of any fear.

    You continue, “Make people afraid. If Pat Lykos expects to do the job of Harris County District Attorney, she‚Äôd better make that a part of her being.”

    This blurs the descriptive-normative line. It may be a poor choice of words or I might be misreading you, but you appear to be advocating for prosecutorial injection of fear into criminal proceedings, i.e., that Pat Lykos should try to make people afraid if she is to do a good job as district attorney. Whether or not this kind of thing is currently the norm (and I agree that it is), we shouldn’t be asking for it. A good district attorney should not try to make anybody afraid. This may be impossible as a practical matter (for the foreseeable future), but that only means there’s no such thing as a good district attorney, not that we shouldn’t strive for it to be actualized.

    AHCL wrote: “I think it is also very valid that in cases involving violent offenders (which are pretty much the only types of cases that Kelly tries), that jurors SHOULD be afraid. As you and I discussed (Off Blog) today, I feel that ‘fear’ and making a jury understand how scary a scenario might have been for a Complainant is a legitimate consideration for juries.”

    Fear is never “a legitimate consideration for juries” determining whether to convict. Criminal offenses have elements that must be proved with evidence, none of which are how scary a scenario was for a complainant. This is an intolerable and indefensible position for a prosecutor to take.

  7. Jigmeister says:

    PJ you are way off base. No one is advocating scaring a jury into falsely convicting anyone. Prosecutors make guilt arguments based on the facts and interpretation of those facts to convince a jury that the defendant committed the offense in the manner consistent with that interpretation. Those facts may be scary and it is fair to recite and interpret those facts within the context of arguing that they prove guilt. That’s why the jury sees the autopsy photos, etc.

    The real argument is in punishment. Is it fair to scare a jury into a longer sentence or the death penalty when those are sentencing options under the law. The answer is resoundingly yes. Societal deterance is based on the fear of the community that either he or others will commit crimes in the future. Victim impact also figures into the analysis. They are often afraid and communicate that to the jury. Obviously juries speculate, but the law is structured so that juries make a subjective decisions not quanitative ones on punishment.

    To take fear out of the equation, the law must change to something akin to federal guidelines.
    It doesn’t appear to me that they have worked well. And even there fear plays some role in sentencing.

  8. Ron in Houston says:

    I was going to comment on the fear/anger connection, but I see you’re about to do that.

  9. PJ says:

    jigmeister wrote: “Is it fair to scare a jury into a longer sentence or the death penalty when those are sentencing options under the law. The answer is resoundingly yes.”

    No, it isn’t. In fact, it is resoundingly no. Sentencing–particularly in death cases–is also supposed to be based on reason, not fear. Capital offenses have factual elements at sentencing that must be proved with evidence, just as the guilt phase does. It is disheartening to me that prosecutors are so far off base when it comes to the very fundamentals of American criminal justice.

    “It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on reason rather than caprice or emotion.”–US Supreme Court, Gardner v. Florida
    430 U.S. 349. (Fear is an emotion.)

  10. Mark Bennett says:

    From the bottom to the top:

    Ron, feel free to comment on that. I’m not sure the best way to put what I know.

    Jigmeister, 18 USC 3553 allows specific deterrence and incapacitation as goals of sentencing. I think that specific deterrence and incapacitation are fairly based on fear. We evaluate how likely it is that the defendant will harm someone in the future — how scary they are — and set punishment to account for this danger. If nobody’s advocating scaring juries to convict people, it doesn’t mean they’re not doing it; they’re just not talking about it. (I don’t believe there are many prosecutors who try to convict people whom they believe to be innocent.)

    PJ, you may well be right. Let me give that some more thought. My initial impression is that the system’s design, based on fear, requires that prosecutors make jurors afraid. A district attorney who didn’t scare people wouldn’t be doing her job within the current system.

    Why are Americans “obedient and subservient to power”? Fear. We are subservient to power because we are afraid and expect the government to protect us. That just means that much of the prosecutor’s frightening work has been done before jury selection begins.

    WJ, “fear” doesn’t have to be fear for one’s own physical wellbeing. It can be fear of losing the other things one values, or fear for another person’s — even an innocent stranger’s — wellbeing. A domestic violence case is a good example of fear-based prosecution. Prosecutors go after people accused of that crime with particular zeal because they’re afraid (often justifiably) that the people will reoffend if not harshly punished. Juries are harder to scare than prosecutors in these cases, though.

    Juries are much easier to scare in child sex cases; the fear in those cases is so great that it’s harder for a defendant to get a fair trial than in other cases.

    Best discussion ever. Thank you all.

    Mark.

  11. Bob says:

    Mark, first, as a former prosecutor, I can assure you that “most” of the time when prosecutors get together they talk mainly about two things: themselves and other lawyers (prosection or defense). I have no doubt AHCL loves to talk about himself/herself and all the cases he/she has tried.

    And secondly, I have been to several trainings where Kelly S gave so-called motivational speeches or “how-to” tips to prosecutors about trying cases and the ONLY memorable thing about her lectures, aside from all the advise she gave about being “theatrical” in trying a case, was not to “make the jury afraid,” but was “to wear your power red suit,” which I always found funny because Kelly would wear her power red suit during her trials with purple. And anyone who is paying attention more to her suit than the case knows that purple and red don’t go together. So, as a fashionista, I was embarassed for her, but then again being a good prosecutor or lawyer isn’t about what you wear. Now, I realize that the above statement about “wearing your power red” is well, pretty much dumb, but it was the only memorable thing about her lectures.

  12. Mark Bennett says:

    Bob,

    So prosecutors are just like defense lawyers, only with less fashion sense?

  13. I understand the whole point, but let me turn on its head–don’t defense lawyers (maybe not the structure of the cj system, but just some individual defense lawyers) use fear as well. Here are actualy arguments (summarized) by defense lawyers:

    “Ladies and gentleman of the jury, the dui laws in our country have become so totalitarian, that any officer can accuse anyone and your license can be taken away.”

    Or take a sexual assault on a child case…what’s usually the defense? The child is being coached and manipulated to say something. Or a sexual assault case against a female victim. The defense usually is–she’s lying. Isn’t that putting the jury in fear that one day they’ll be falsely accused??

    Or take a death penalty case, isn’t fear that an innocent person can be convicted (no matter how overwhelming the guilt) a common tactic for defense lawyers–maybe not to the jury, but to the media?

    ~Western Justice

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  15. Mark Bennett says:

    WJ, it’s an interesting point. What’s the difference? Hmmm.

    In the first and second examples there’s no direct connection between what the jury does in this case and the feared incident (being themselves accused of DWI or sexual assault).

    In the second and third cases, I would call it playing on the jurors’ fears, rather than “making them afraid”.

    A juror should be afraid of convicting a factually innocent person — doing so causes immediate harm to another human. Acquitting a factually guilty person doesn’t generally have the same direct and inevitable result.

    I think the first might be a good example of trying to make people afraid. I don’t know how effective that is. My guess is “not very,” at least down here in Texas. The jury is going to decide whether they think your dude was intoxicated; if they do, they’re not going to be afraid of the totalitarian laws. Even if they aren’t certain, they’re going to look for some way that your guy isn’t like them so they can trust the government to keep them safe and not falsely arrest them. White people in Texas really want to trust the government.

    I usually figure that if we try to compete with the government to make the jury afraid, the cause is pretty much lost.

    Just spitballing here.

  16. PJ says:

    Western Justice,

    It is a sufficient answer to your comment to state that defense lawyers in Texas aren’t bound by article 2.01 of the Code of Criminal Procedure. But it’s not quite the same thing anyway. The arguments and strategies of defense counsel you posit have direct relevance to the case. If a defense lawyer argues a witness in the case is lying, it may very well mean the defendant is not guilty if the lawyer is correct, regardless of whether there is also an implication that a juror could find himself or herself similarly falsely accused. If a prosecutor makes a juror afraid that a similar crime could happen to them, that has nothing to do with the defendant’s guilt in the particular case.

    (The first argument you recite regarding DUI isn’t so much a prejudicial argument as an accurate statement of law (with the exception of the “totalitarian” pejorative). All defendants are only accused. They are innocent until proved guilty and an indictment or complaint (the result of the police accusation) is not evidence of guilt.)

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