Pivotal Perspective: United States Army Trial Defense Service and Military Justice Next

The U.S. Army Trial Defense Service, Eurasia South Field Team poses together outside their office at the Area Support Group-Kuwait Headquarters on Camp Arifjan, Kuwait: (from left to right) LTC Michael Fritz, Sr. (USAR), SGT Yolanda Pinckney (NYARNG), SSG Jodie Cassidy (USAR), and MAJ Rob Rodriguez (Active Duty)

Pivotal Perspective

United States Army Trial Defense Service and Military Justice Next

Continuing to Defend Those Who Defend America

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By Colonel Sean T. McGarry

There is no more fulfilling job and exhilarating feeling than to stand next to your client when the military judge says, “Accused and defense counsel, please rise,”1 and then hear the fact-finder state, “To all charges and their specifications, not guilty.”2 In the more than forty years since its establishment, the U.S. Army Trial Defense Service (USATDS) has provided principled counsel and zealous representation of our Soldiers who defend America, nesting within the Judge Advocate General’s (JAG) Corps mission to “provide principled counsel and premier legal services.”3 At times seemingly underappreciated, yet working the most challenging and professionally rewarding job one could do in our Corps, defense counsel protect the rights of our Soldiers and serve within the only constitutionally required segment of our military justice (MJ) system. Professionally adversarial to the Government side of our MJ system, USATDS serves as the critical check and balance that ensures fairness for our Soldiers navigating the judicial, nonjudicial, or administrative components of our system.

From the U.S. Army’s inception in 1775 the JAG Corps has conducted courts-martial, but shockingly, USATDS has only been part of our Corps since 1980. With Service-specific justice systems through World War II, our Nation saw more than 1.7 million courts-martial conducted for a 16-million-strong force.4 The sheer volume of cases alone exceeded the ability to detail individual defense counsel to the accused. Additionally, neither the Articles of War5 nor the Articles for the Government,6 which governed the Army and Navy, respectively, required licensed attorneys to serve as presiding officers or individual detailed counsel.7 This left America’s greatest generation without the minimum due process protections we take for granted today. One well-known example is featured in the HBO mini-series, Band of Brothers, which depicts First Lieutenant Dick Winters receiving a one-paragraph note from his commander, Captain Herbert Sobel, under Article of War 104 (what we now refer to as nonjudicial punishment), directing him to elect either punishment for a minor infraction or face trial by court-martial.8 First Lieutenant Winters did not have the opportunity to consult with counsel prior to making his election because that right did not exist at the time (nor would it for nearly another forty years). Individual due process, while non-existent in an archaic system of justice, highlighted a need for improvements, and our Corps responded.

The first Uniform Code of Military Justice, enacted in 1950, provided a single set of rules applicable to each of our Services in the fair and orderly administration of MJ. However, it took another twenty-five years before we saw the first real steps taken toward the creation of the independent organization.9 In 1975, The U.S. Army Judge Advocate General, Major General Wilton B. Persons, Jr., approved an experimental “Field Defense Services Office” as a branch of the Defense Appellate Division, to oversee and execute training for defense counsel and to provide legal advice to defense counsel in the field.10 Despite establishing this Field Defense Services Office, defense counsel in the field were assigned to the Office of the Staff Judge Advocate (OSJA).11 The command’s control over both the prosecutor and defense counsel not only raised professional responsibility concerns with the unlawful, improper, and inappropriate influence of both counsel, it also infringed upon the independent attorney-client relationship.12 As a result of these concerns and to ensure fairness in the MJ system, the JAG Corps, with strong command support, formally established USATDS in 1980 as a separate organization completely independent of the OSJA.13 The initial establishment of USATDS was staffed with about 200 judge advocates (JAs) in the Active component located across nine geographic regions and sixty field offices.14

Throughout the forty-three years following its establishment, USATDS continued to alleviate previous concerns related to command influence over the defense’s independent organization and effectively demonstrated that protecting clients’ constitutional rights and interests is critical to an effective, efficient, and fair MJ system. The foundational concepts of fairness and justice that USATDS embodies as an organization have become so ingrained in the JAG Corps’s culture that it is hard to fathom a time when an accused did not have access to independent counsel unconstrained by fealty to command interests. The current patch, authorized in 2006, continues to remind defense counsel of the constitutional import of trial defense work, as both the shield for those who defend America and the dual-professional character of JAs as members of the professions of arms and law.15

A properly resourced, trained, and staffed organization is key to USATDS’s independence. The USATDS organizational structure and resourcing have evolved over the years, but the JAG Corps and USATDS remain committed to provide the principled counsel that our Soldiers deserve and have earned. The Army has changed and downsized significantly since USATDS’s founding. With a current force that includes 140 JAs, one legal administrator, thirty-three paralegals (filling TDS-specific billets), thirty-one Department of the Army Civilians, and forty-two paralegals (resourced by local OSJAs in our organizational structure) divided between the Office of the Chief and eight circuits,16 USATDS’s core contribution to fairness and effective justice has remained constant. As the JAG Corps moves toward 2030 and the Army of the future, USATDS personnel, as part of “the most highly trained, inclusive, and values-based team of trusted legal Army professionals,”17 will continue to provide that necessary check and balance to an effective MJ system.

Current force management initiatives across the JAG Corps to implement the National Defense Authorization Act for Fiscal Year 2022’s18 “MJ Next”-based growth will enhance independence and fairness for both sides of the aisle. The MJ Next personnel increases approved specifically for USATDS, similarly allotting to the defense certain litigation resourcing previously made available to the Special Victims’ Prosecutor Program, will ensure parity with changes occurring within the Office of Special Trial Counsel and other Government prosecutorial functions.19 As the JAG Corps implements the MJ Next programming personnel growth through fiscal year (FY) 2025, USATDS will grow to roughly 350 personnel in our Active component and over 700 personnel when including our Reserve component personnel. The multi-component structure of USATDS facilitates mutual support for both garrison and deployable mission sets and provides for cross-component transfers as a talent management mechanism, to best position USATDS for retention and effective utilization of its collective litigation talent across all components.

As the environment changes, we must keep pace with all client needs; we owe it to them and the sacrifices they have made in defense of our Nation.

The USATDS mission to provide the full range of defense legal services to our Soldiers around the world has not substantively changed since its founding in 1980, but the capabilities to do so efficiently and effectively have evolved significantly. The single biggest change came in 2007 with the establishment of the Defense Counsel Assistance Program (DCAP), a centralized resource to substantively advise and train defense counsel in the field. Providing both world-class training and case-specific reach-back support from highly qualified experts and experienced former defense counsel, who are also available for case consultation or detailing, DCAP is litigation-practitioner-focused. In FY 2019, USATDS also established a complex litigation section specifically designed to litigate and advise defense counsel involved in high-profile and complex cases as well as train the JAG Corps’s next generation of litigation experts.

With approved MJ Next personnel growth through FY 2025, USATDS will add sixteen complex defense litigation teams,20 with two teams per circuit at the Army’s busiest jurisdictions. Additional circuit-level growth will include eight Civilian legal administrators (GS-11/12), eight nominative regional defense paralegal noncommissioned officers (RDPNs) (sergeants first class), and twenty-seven defense investigators, each designed to optimize both circuit-level management and provide more robust capabilities than existed previously in USATDS.

Each new position is purposed to improve the overall defense capabilities at the circuit level and, specifically, to free the regional defense counsel to focus on providing more direct litigation and leadership development across the multiple field offices within each circuit. Inherently important is the current initiative to strike a proper balance of the additional paralegal resources needed to manage USATDS field offices; such an initiative is expected to build efficiencies in how we support our Soldiers. Combined with the recently approved nominative selection for both the RDPNs and defense litigation paralegals, USATDS continues to accrue the necessary tools for organizational evolution. Moreover, such development allows the perfect balance to strike between leadership and enhanced subject matter expertise in criminal law at every strata of the organization.

The JAG Corps continues to demonstrate flexibility, balance, and efficiency with our collective MJ practice. As the environment changes, we must keep pace with all client needs; we owe it to them and the sacrifices they have made in defense of our Nation. The MJ enterprise is no exception. With the ever-increasing requirements placed upon our system, there is also opportunity. As the JAG Corps career model expands to allow for successive MJ assignments and increased cross-pollination between Government and defense positions, there is no better opportunity in the JAG Corps to develop strong MJ proficiency and leadership skills than USATDS. TAL

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COL McGarry is the Chief of U.S. Army Trial Defense Service at Fort Belvoir, Virginia.

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Notes

1. U.S. Dep’t of Army, Pam. 27-9, Military Judges’ Benchbook 74 (29 Feb. 2020).

2. See id. (providing the script for military judges to follow while findings are announced).

3. Mission and Vision, JAGCNet, https://www.jagcnet.army.mil/Sites/jagc.nsf/homeContent.xsp?open&documentId=DEE613DFEC84B73B852579BC006142CE (last visited Oct. 5, 2023) [hereinafter Mission and Vision]; see also U.S. Army Trial Defense Service – History, JAGCNet, https://www.jagcnet.army.mil/Sites/USATDS.nsf/homeContent.xsp?open&documentId=C440AF1C1F5589C285257B490069B306 (last visited Oct. 5, 2023) [hereinafter History].

4. Fred L. Borch III, TDS at 40: A Short History of Its Origins, Army Law., no. 6, 2020, at 25 [hereinafter TDS at 40]; Edward F. Sherman, Military Justice Without Military Control, 82 Yale L.J. 1398, 1398 n.1 (1973).

5. Articles of War of June 4, 1920, 41 Stat. 759 (1920).

6. U.S. Dep’t of Navy, Articles for the Government of the United States Navy (1930).

7. See Fred L. Borch III, JAG Department to JAG Corps: Why Did It Happen?, Army Law. no. 1, 2023, at 32.

8. Band of Brothers: Currahee (HBO broadcast Sept. 9, 2001); Erik Dorr & Jared Frederick, Hang Tough: The WWII Letters and Artifacts of Major Dick Winters (2020).

9. TDS at 40, supra note 4, at 25.

10. Id.

11. Id.

12. See id.

13. See id. at 26.

14. Id.

15. Id.; History, supra note 3.

16. 1st: Atlantic; 2nd: Southeast; 3rd: Mississippi Valley; 4th: Great Plains; 5th: Southwest; 6th: West; 7th: Pacific; and 8th: Europe.

17. Mission and Vision, supra note 3.

18. National Defense Authorization Act for Fiscal Year 2022, Pub. L. No. 117-81, 135 Stat. 1541 (2021).

19. See The Judge Advoc. Gen. & Regimental Command Sergeant Major, TJAG & RCSM Sends, Vol. 41-08, MJ Reform (18 Jan. 2022).

20. Sixteen complex litigation defense counsel (lieutenant colonels/majors) and sixteen nominative defense litigation paralegals (staff sergeants).