MAJ Joe Wheeler, DCAP Deputy Chief, conducts training for defense counsel during the COVID-19 pandemic. (Photo courtesy of LTC Jeremy Stephens)
Closing Argument
Mastering Military Justice Advocacy During a Pandemic
By Lieutenant Colonel Phil M. Staten & Lieutenant Colonel Jeremy Stephens
Advocacy matters.Effective advocacy matters more. Soldiers facing courts-martial and the loss of liberty demand it, and so too do the victims and commanders turning to the military justice system for help. However, effective trial advocacy is not a fire-and-forget mission; the military justice system and its practitioners require constant training and nurturing. The Judge Advocate General’s (JAG) Corps meets this need for constant training and support through the Trial Counsel Assistance Program (TCAP) and the Defense Counsel Assistance Program (DCAP), which exist to train counsel across the Corps.1 Clients demand the best of our counsel and our counsel demand our best training and support. Mastering military justice advocacy takes practice and repetition. And, unlike riding a bike, advocacy skills often deteriorate as we move out of justice jobs; and, as the last ten years have shown, massive shifts in our criminal law practice affect advocacy training as well. This article discusses the need for constant training on advocacy and how our programs continue to meet our training mission during the Coronavirus Disease 2019 (COVID-19) pandemic.
Defending Those Who Defend America
At DCAP, our goal for practitioners is clear: be better. At the end of any DCAP course, counsel are able to look themselves in the mirror and know how they got better. Our training and support style requires first-line leaders to invest in their people and know their strengths as opposed to relying on formulaic injects from higher. A Senior Defense Counsel leading three defense counsel, who likely have varying levels of advocacy, needs to devise a training plan to make each person better and make the whole office ready for the next client. This is where DCAP—with a staff of six attorneys, including two esteemed former military judges—joins the fight. We empower counsel with hundreds of pages of outlines; regular case updates; and practice notes to the field. Among other things, we supplement those with short-course training in digital evidence, advanced advocacy, and working with expert witnesses.
Succeeding as a trial advocate requires a clear set of skills: confidence, competence, and an ability to think on one’s feet. Counsel become competent and gain confidence in their craft by knowing the law and knowing military criminal procedure. However, a litigator can only learn the art of responding to objections or cross-examining a witness through repetition. But how does this happen in a pandemic when something that trial advocacy training historically requires—an in-person small-group setting—is off-limits indefinitely? As the old adage reminds us all, necessity breeds innovation.
As a young defense counsel, I learned that the way to success was often via the vast Trial Defense Service (TDS) network. While the COVID-19 pandemic has hindered the ability for new counsel to integrate seamlessly into the network, the network is alive and well. From Senior Defense Counsel leading TDS-wide officer professional development trainings, to virtual ice-breakers during our online training, TDS remains an amazing team that I am proud to be a member of.
Just as our practitioners require constant refinement in the age of the pandemic, so too did the mission and focus of DCAP. Our team was faced with an interesting scenario: many defense counsel had to work from home, while several were joining TDS without prior criminal law experience and would soon be detailed to cases. Before COVID-19, DCAP was on the road training counsel around the world at least twice a month. But, while the pandemic shuttered those plans, it did not end our mandate to train counsel. We owed them and their clients training resources and support the moment they hit the ground. Beginning in March 2020, DCAP looked at everything: various technological meeting platforms; delaying our planned training to create time and space in the pandemic;2 and private sector resources.3 In August 2020, we released our first fully-virtual Defense Counsel 101 course. Counsel across the world came together and got better. Yes, initially—like elsewhere—there were technological hurdles and video lags. But there were also pleasant surprises. Our course was fully integrated across all components as we included Reserve and Guard personnel. This was only possible due to the work of our Reserve colleagues, Major (MAJ) Marc Stewart and MAJ Richard Meng, and DCAP’s ability to train at scale without attendees being forced to travel.
The trial docket never stops, and neither does DCAP’s training. We constantly seek to improve our teammates in the field who are defending those who defend America, and our team is always looking for new members.
Representing the U.S. Government
Adversity brings challenges, but it also brings opportunities. The COVID-19 pandemic has certainly presented challenges, and the Army and our Corps haven’t been immune to them. At TCAP, COVID-19 has presented arguably one of TCAP’s greatest challenges of all: if we can’t train our prosecution teams in person when advocacy learning is at its best, then how do we train them? After all, part of TCAP’s mission is to provide assistance, resources, and support for the prosecution function throughout the Army, as well as to conduct advocacy training and assist OSJAs in the prosecution of specific cases. Indeed, since its very inception, one of TCAP’s most important services to trial counsel has been to provide direct advocacy assistance, especially in particularly challenging cases. The Trial Counsel Advocacy Program was determined not to be defined by COVID-19, and we worked to create the best possible solution. The answer was Microsoft Teams (or MS Teams). Although not ideal, TCAP replaced physical presence with the next best thing: a remote platform which still allows the next best “face-to-face” contact and, better yet, advocacy training. The Trial Counsel Advocacy Program Headquarters Team, or “TCAP Main” as it’s often referred to, consists of three training officers; three Highly Qualified Special Victim Litigation Experts, former career civilian criminal prosecutors; two complex litigators with significant military criminal law experience; a deputy who is a former special victim prosecutor (SVP); and SVP teams. Each member worked diligently to become MS Teams “experts,” which has translated into effective online advocacy training for our litigators worldwide. From the Basic Trial Advocacy Course to the Military Institute for Prosecution of Sexual Violence, MS Teams has allowed TCAP to provide realistic and pragmatic advocacy training which allows our prosecutors to zealously represent the United States in courts-martial. The participants’ office or home became their new courtroom, and we gave them “on-your-feet” practice with everything from an opening to a closing statement.
However, TCAP’s mission goes beyond these short courses and also includes “Outreaches.” Normally, absent COVID-19, TCAP travels for a three-day outreach—providing formal instruction in the morning while conducting case reviews with trial counsel in the afternoon. The Trial Counsel Advocacy Program generally sends three-to-five TCAP personnel, including a training officer, Special Victim Litigation Expert, and either the chief or deputy chief. For regional outreaches which involve trial counsel from multiple installations in a geographic area, such as Germany and Korea, TCAP usually sends eight-to-ten personnel. The team obviously became frustrated when COVID-19 took away our ability to travel in order to conduct this training, which included advocacy training in the courtroom. However, what COVID-19 took away, TCAP decided to get back through MS Teams. Working closely with Offices of the Staff Judge Advocate, we designed and tailored outreach agendas to maximize the training conducted in this new operational environment. While this presented challenges in terms of time difference, etc., TCAP has successfully continued this important and invaluable training.
TCAP spends a significant amount of time and resources contracting for and providing advocacy training to the field. Much of the training focuses on how to investigate, charge, and prosecute special victim cases—which includes child physical and sexual abuse, sexual assault, and domestic violence. The Trial Counsel Advocacy Program also provides logistical and technical supervision for the twenty-nine SVPs, twenty-three Special Victim Noncommissioned Officers, and twenty-three Special Victim Witness Liaisons. Given this important and critical mission, TCAP refused to allow COVID-19 to win by disrupting its advocacy training to field, and will continue to do so.
Conclusion
Mastering trial advocacy is not like riding a bicycle. The skills we learn as advocates are perishable—even before accounting for new cases, rules, and policy guidelines. Our teams exist to remind judge advocates—and all justice leaders—that while you may be the only one standing for your side in the courtroom, you do not stand alone. Both TCAP and DCAP fulfill a global 24/7 mission and, whether it’s fine-tuning theme and theory or proofreading a motion, trial support and resources always exist. TAL
LTC Staten is the Chief of the Trial Counsel Advocacy Program at Fort Belvoir, Virginia.
LTC Stephens is the Chief of the Defense Counsel Advocacy Program at Fort Belvoir, Virginia.
Notes
1. For training missions regarding the Trial Counsel Assistant Program (TCAP) and Defense Counsel Assistant Program (DCAP), see U.S. Dep’t of Army, Reg. 27-10, Military Justice paras. 21-4, 22-2 (20 Nov. 2020).
2. Rather than cancelling programs and activities, we pushed our calendar to the right to create decision making time for us and Regional Defense Counsel in the field (i.e., we started our training later than normal in August and September hoping the pandemic would slow down—which it didn’t). And, since we were removed from the Permanent Change of Station chaos, it created space to potentially do more.
3. As an example, in response to an increase in DUI cases, DCAP funded virtual training for counsel in DUI Defense offered through the National Association of Criminal Defense Lawyers in summer 2020.