What are the possible consequences of having high turnover among defense attorneys? Does the quality of justice decline as a result?

Case Study:

Unlike the portrayals that are commonly seen on television, criminal defense attorneys, for the most part, make very little money in comparison to other areas of legal speciali- zation, and they work long and hard hours. It is estimated that there are around 20,000 criminal defense attorneys in the United States, representing less than two-tenths of 1 percent of all attorneys in the country. So, why does a person become a criminal defense attorney and, more important, what motivates them initially to pursue such a profession. Also, why do they stay in a line of work when they lose an overwhelming majority of their cases?

McIntyre’s (1987) research revealed that for many criminal defense attorneys, the answers to these questions lie in their education, a belief in the presumption of inno- cence until proven guilty, and, in some cases, a zeal for making sure that the government proves its case against a defendant in a fair manner, a belief rooted in a legal logic and history that the adversarial system works best when the state is compelled to prove its case and not merely rely on allegation or innuendo. Remember, for the criminal defense attorney, it is not enough for the state to believe someone is guilty; they must prove that person is guilty.

McIntyre cites the fact that criminal defense attorneys are inculcated in law school that the legal system is predi- cated on the presumption of innocent until proven guilty. The criminal defense attorney learns in his or her legal train- ing that the burden of proof in a criminal trial is on the state. It is the prosecutor’s responsibility to prove his or her case; the defense attorney has to prove nothing. Holding the state to this standard is a belief that is drilled into the defense attorney in law school. What motivates the criminal defense attorney is the belief that when it comes to poten- tially depriving people of their liberty, it is paramount that the state produces evidence to meet the presumption- of-innocence threshold. Again, believing guilt is not the same as proving guilt.

This belief, as a guiding principle that motivates people to enter into criminal defense work and sustains them, is important to understand. How does a manager of criminal defense attorneys maintain enthusiasm for this belief among criminal defense lawyers? From a motivation theory perspective, much of this discussion is based on an intrinsic source for motivation, but as indicated in this chap- ter, this belief may become jaded and warped by the lack of extrinsic rewards for the work. It is commonly known that for many persons coming out of law school, criminal defense work is not the most desirable profession due, in large part, to the wages offered. Criminal defense attorneys make significantly less money in their careers, on the whole, and often cite their beliefs in fairness and the right to a criminal trial, as well as the presumption of innocence until proven guilty, as the reasons they continue to work. This is laudable. However, the strains of the profession and the lack of extrinsic rewards make motivation a critical issue for those who administer public defender offices.

In addition, the criminal trial can be a dirty process. Idealistic defense attorneys soon learn that the state is not always forthcoming and honest in its dealings with the defense. The harsh reality of the criminal court forces crim- inal attorneys to dissect and analyze the state’s case. Too many experiences and conversations with other defense attorneys reinforce the belief that the state is not to be trusted, nor should they be trusted. Whether it is poor evi- dence touted as solid evidence or even downright fraud and misrepresentation, the savvy criminal defense attorney has learned that you can’t trust the state, and it is the defense attorneys’ job to force the state to play the game fairly. For many defense attorneys, this is an important belief and keeps integrity in the criminal court process. But again, reality is a harsh teacher, and this intrinsic motivation is difficult to sustain. Given the limited extrinsic rewards avail- able to many criminal defense attorneys, how is this intrin- sic belief sustained?