Monday, March 24, 2008

Fear Factor

Mark Bennett has done a post about something mentioned in the Alan Bernstein article on Kelly Siegler where Kelly had written in her notes at Baby Prosecutor's School "make jury afraid".

I'm going to skip the part of my argument where I point out that the phrasing is open to interpretation and was just a note she made as part of her lecture on closing arguments.
NOTE: Kelly also wrote in the same notes "Make jury proud", meaning to make the jurors proud of you (the prosecutor) for the job you've done on behalf of the State of Texas.

Let's just assume for the sake of the argument that Kelly made a part of her lecture pointing out that sometimes a prosecutor should make a jury afraid during closing arguments.

What's so wrong with that?

A jury is called in to, first, make a decision over guilt or innocence, and then decide what is the appropriate punishment.

Some cases call for them to feel fear.

My personal belief is that when it comes to assessing punishment for a person who has been convicted of a crime that the jury should have a complete understanding of all factors involved. They should know what a victim went through. They should know the things that mitigate a Defendant's actions.

And when the case calls for it, they should damn well feel fear if fear is called for.

There should be moderation in all things, of course. Arguing that the guy who possessed a crack pipe is "coming to get you" would be ridiculous. But arguing that the person who sticks a gun in a stranger's face is a scary menace to the public is quite logical, if you ask me.

Mark argues that prosecutors are all "motivated by fear" and that they are "scared of the world".

I think he missed the boat with that argument.

Most prosecutors that I know are more motivated by anger than they are fear.

Anger that a person steals things rather than pays for them.
Anger that a person would sell crack on a corner rather than try to get a lawful job.
Anger that a kid with a gun views the world as their personal ATM machine.
Anger that a drunk driver puts the rest of the world at risk when they choose to drive.
Anger that life is so cheap to some people.
Anger that a person will hurt or sexually abuse a child.

Out of every defendant I've ever prosecuted, I don't think there have been more than a handful that I would say that I was personally scared of.

But I think I've been angry about the actions of almost all of them.

For those cases where I have felt fear of a defendant and the actions he or she did, you can bet your rear end that I tried to make the jury understand that fear and to factor it into their decisions when assessing a proper punishment.

And for that, I make no apologies.

Maybe that's just part of the D.A.'s Office "culture of arrogance".

Or maybe it's just part of representing the State of Texas.


Unknown said...

It's okay for a defense attorney to take the jury on a guilt trip for having to follow the evidence and law in convicting & sentencing a defendant but it's not okay for a prosecutor to evoke fear or anger in jurors' minds? That fear and anger is what a good portion of the citizenry feel when they're victimized or when they hear about crime in their community. Effective rhetoric is supposed to motivate the audience to act. It does this by evoking strong feelings such as fear, anger, sadness, guilt, etc. Apparently it's okay for defense attorneys to motivate people in this manner but not okay for prosecutors.

Michael said...

AHCL's list of defendants who she's angry at includes a lot of poor criminals, but not many rich ones (except for drunk drivers). For some reason, I get angry at rich criminals more easily. I guess I'm more morally outraged at someone who really had choices and chose crime; at bottom, poor criminals' mindsets are usually either desparate or angry themselves. Rich criminals, on the other and, range from thinking they can get away with it, to thinking that they OUGHT to get away with it.

But I guess my "failing" as a trial attorney is my desire that the jury not act out of fear, or guilt, but reason. Here are the elements of the crime. Is there a reasonable doubt in your mind as to this element? No? Then how about this one? If you make it all the way through the punch list, then you should find the defendant guilty. Plenty of the "bad" jurors in 12 Angry Men were motivated by fear or anger, and tried to sway the others with those emotions.

Michael said...

j, I've missed the part where anyone said it was okay for defense lawyers to manipulate juries with guilt. I think juries should feel guilty when they DON'T follow the evidence and law.

Effective rhetoric is supposed to motivate the audience to act? I suppose that's true. But is a prosecutor's goal to motivate the jury to act? Or to act fairly? Or to see that justice is done?

Ed Veronda said...

Agreed. Mark is articulate in his argument, but I believe (just on my experience and bias as a prosecutor) that a jury is more motivated by the determination of guilt or innocence than by how fearful looking the defendant is or how fearful the crime is. Not that every jury is completely hoest with me when I speak to them, but I always hear them say "We found him not guilty because there was not enough evidence," never "That defendant looked too nice."

jigmeister said...

Mark's argument only holds validity in the guilt/innocence phase. There Michael is right that the jury function is to decide if guilt is proven based on the facts.

It has very little validity in punishment as long as Texas law permits wide ranges for serious crimes and jury decisions remain subjective. Argument is meant to convince. Fear is a convincing motive. Not to use it would be incompetence.

Murray Newman said...

Once again, I agree with Western Justice and Jigmeister's assessment.

And Michael, if you'll not that I said that I believe a jury should take into account ALL things, and that includes a Defendant having a background from poverty. However, the impoverished background only resonates with me up to a degree. I've walked through some of the poorest apartment projects that Houston has to offer, and I've met a lot of dirt poor people who lived there that were very good people. Some of them had a work ethic and a moral code that would amaze even the most skeptical of people.

Those that turn to crime and blame it on poverty can cite is a factor, I suppose, but I hardly think it is controlling.

Michael said...

AHCL: I didn't mean that poverty was an excuse for crime, though it is an explanation for it and measures that tend to reduce poverty also tend to reduce crime. I was just remarking that your anger seemed more directed at poor criminals than at rich ones, who I think act much more inexcusably, though usually not violently. The criminal I hate the most is the one born into a rich family who doesn't particularly do well in school, does drugs, bumbles through college and business school (after he couldn't get into law school), runs two oil businesses into the ground before making his millions by using governmental power to steal land, then goes on to become governor and then president (by stealing some more), then tells lies resulting in the deaths of 4000 Americans and counting, not to mention hundreds of thousands of foreigners, with to date no worry of any criminal sanction.

Ron in Houston said...

Human beings are emotional creatures.

However emotions are the source of so much suffering in the world.

Ideally trials should be about facts and the credibility of witnesses.

Isn't in a way playing to emotions "lame?" Doesn't that mean that you can't rely on the strength of your facts?

jigmeister said...


If you are arguing a custody case where you believe one parent is a danger to the child, perhaps a history of abuse, don't you use the facts to scare the fact finder into doing what you think is right?

Michael said...

Not that Ron needs any help answering jig's question, but in a child custody case, the fact that one of the parents had been abusive to the child would be scary. It would also be relevant. There's a difference between getting the relevant facts in front of the jury to let them find the truth, and getting irrelevant facts in front of the jury to let them find their fears.

Murray Newman said...

Michael, I agree with you about a wealthy defendant. They usually have no excuse for their actions other than thinking that they don't have to answer anybody.

I think in talking about our whole "fear factor" that generally we are okay with the fear if it is a fear that is relevant to the case at hand, but not okay with fear that is just drummed up out of nowhere that doesn't have a true bearing on a case.

The problem will always be that we argue over what fear is relevant.

Michael said...


I tried to hunt down the post this reminded me of, but can't find it; I think it's on Bennett's blog. It was about a father on trial for murdering his daughter. The prosecution introduced evidence that he had tortured her months before she was killed. Whoever posted the message made the point that yes, the father was scum, but whether he was a bad father was not relevant to whether he had taken the life of his daughter. Evidence that he was a bad father may have some relevance (though I maintain it didn't) but should have been outweighed by its unfairly prejudicial effect.