More Truth About Fear

 Posted on March 24, 2008 in Uncategorized

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.