TDS: The Establishment of the U.S. Army Trial Defense Service

• Author: by Lieutenant Colonel John R. Howell
• Pages: 02

INTRODUCTION

By the end of World War 11. the organization af military trial defense counsel had already become a sensitive problem far the armed forces. For the next thirty years, it continued to be a troublesome issue. During that time, there were persistent allegations that the military's internal procedures for assigning and otherwise supervising defense counsel had seriously weakened the military criminal justice system.

Morespecifically. certain critics alleged that defensecounsel were not adequately protected from improper command pressures. that inexperienced or incompetent officers were routinely assigned as defense counsel. that these officers tended to cooperate unduly with the government, and that prosecutors usually received better command support than did defense counsel. Taken together, it was said, these conditions had undermined the quality of defense services and hadcontributed toalassof publicconfidencein theessential fairness of military justice.

These charges were not taken lightly. Defenders of the military system pointed out repeatedly that the protections provided by

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TRIAL DEFENSE SERVICE

Article37oftheUnif~armCodeof MilitaryJustice'andother built-in safeguards effectively shielded defense coun~el from improper command influence. Yet the controversy continued. The military services could not shake a growing perception that the allegations were valid.

Army experience withthis problem was similar tothatof theother services. Prior to 1978, Army defense counsel were assigned to specific field commands where they worked for the commander's legal adviser, the staff judge advocate. Within each command's legal office, the staff judge advocate determined who would be a defense counsel and how long an officer would remain in that job. The staff judgeadvocatewasaisoaprincipalraterforeachdefensecaunsel. In short, the staff judge advocate, and thus indirectly the commander, played critical roles inadministeringthe defense functionwithin the command. These officers possessed at least a potential means to influence and even control Significant decisions of a defense counsel on behalf of a client.

Whatever advantages this command-ortented system gave the Army, it also had several serious drawbacks. It made possible the routine assignment ofmarginal or inexper,encedjudgeadvorates as defense counsel and tended to weaken the professional independence of military defense counsel. The system treated conflicting loyalties and conflicts of interest far both the staff judge advocate and the defense counsel. Finally, it fostered the perception that military defense counsel were not professionally independent, thereby compromising not only their credibility but also that of the military criminal justice system as a whale.

Except in rare instances. Army defense counsel either encountered no actual improper command pressures or otherwise ignored such pressure and zealously represented their clients. Nevertheless, in the 1970s. public confidence in the system continued todecine. For various reasons, the Army even then resisted significant changes In defense counsel organization.

Finally, in 1978, the Army Chief of Staff authorized a limited test of the E S. Army Trial Defense Service (TDSj, a separate defense organization under the direct control and supervision of The Judge Advocate General (TJAGj. By the end of 1979, when the test became Army-wide. all full-time trial defensecounsel were assigned to TDS.

Cniform Code of M11Iais Justice article 37, 10 US C 583; (1976) [hereinafter cited 8.3 LChlJl

To manage them, TDS employed a verticai command and management structure that was separate and distinct from that of local commands. Within this framework, trial defense counsel were supervised and rated by other defense counsel rather than by officials of the local command. In November 1980. after a two-year test. TDS \was given permanent organizational status.

For some in the Army. especially certain commanders and staff judgeadrocates, TDSwasanunsettIingchange. But, inan historical sense. its establishment was not an isolated action It was instead a valid evolutionarystep. claselyrelatedto other important changes in the military justice system, particularly the trial judiciary. Though the U.S. Army Trial Judiciary was created twenty years before TDS. bath uere established to protect key participants in the court-martial process and to iprave the public "image" of judges and defense counsel Moreover, their organizational structures were virtually identical.

From its inception. however. the separate defense concept provoked much more controversy and apposition within the Army than did the idea of an independent trial judiciary. Notwithstanding this reaction. TDS was established. The decision to create a separate defense service and to structure it in a certain way can best be understood by placing it in an historical context. This article will therefore trace theeventswhich led toTDS. Thestorybeginsin 1946.

AT WARS END

By the end of World War 11, many individuals and organizations were convinced that the court-martial system was out of balance. Commanders, they believed. had too much power and influence. Kot infrequently, they charged. commanders used this power improper-lytomanipuiate thecriminaljusticeprocesstowardadesired result. In the view of these critics, military defense counsel were frequent victims of improper command influence. It was alleged that, in many cases. this type of command misconduct had denied the accused a vigorous and competent defense.

Because of their wartime experiences, most observers readliy agreed that military defense counsel needed more protection from commanders. But there was also a general belief that active commander participation in the disciplinaryprocess was necessary and proper The real difficulty was in deciding how much command control there should be and how to structure the system to prerent command abuse.

19831 TRIAL DEFEKSE SERVICE

VANDERBILT REPORT

In March 1946, Secretary of War Patterson appointed a civilian advisory committee to evaluate the charges made against the Army court-martial system. Its chairman was Arthur T. Vanderbilt, a distinguished jurist and former American Bar Association (ABA) president.2All the committee members were selected by the ABAat Secretary Patterson's request; none were connected with the executive or legisiative branches of the federal government.$

In its final report of December 1946, the Vanderbilt Committee reached two basic conclusions. It found first that the Court-martial system had a sound theoretical base. On the other hand, its evidence alsaindicated"adefinitepatternofdefectsintheoperatianofthe.. .

sy3tem."'

There were other more specific findings. Military defense counsel and court members were identilied as frequent targets of improper command actions. In many cases, for example, the committee found thatthecommandingofficer hadmadeadeliberateattempttoinfluence courtmembers'decisions.sIn othercases, after an acquittal ora lenient sentence, the commander sometimes chastised the court members with a written reprimand called a "skin letter."e There were other less direct pressures. Not Infrequently, the committee found, the "weil-known attitude of the commander" weakened the independence and vigor of the defense.? Aside from this, defense counsel also tended to be iess qualified than prosecutors and were

'Keparf of the War Department Adiisor) Committee on hlll~rarg Juruce (13

Prorra~, 33 Va L Rev 269, 270 (1971)

Vmderbilr Report, suym note 2. m 4 lernphasir added) The e~mmlttee earefvlli

directed IIJ CrifiCim tau ard the Operation af the system especially atthe trial level At the outset of the report. the committee commenced

Almosr without eweprian OW informants said that the Army system of justice in eeneial and ai written in the book is a good one that ~t IS excellent I" theory and designedtosecureirriftandivreiuirice and that theinnocent arealmost neierconrictedand~heguilr) seldomacqumed

Wth these C O ~ C ~ Y S ~ O ~ S

Id at 3

&Id at 6-7

Vd. at 7 "Skin 1effers"iere still authorized by thehrmyhlanual for Courta-hlar-tial ~n 1946

-Id. at i

the Camm~tfee agrees

often ineffective because of incompetence or inexpermce.~

One cause of these operational problems wvas an insufficient number of competent attorney-administrators. But, according to the committee. the major cause wa the absence of adequate internal controls within themilitars.topreventcommandersfrom uaingtheir power and influence mproperly.? These flaws and otherswrefound to have distorted the criminal justice process. particularly in the disparity and severity of its impact on guilty service members.10

In the committee's n e w a proper balance had to be restored. One way to do this was to limit command control within the system by takingaway many ofthe commander'scourt-martialfunctians.

With

this goal ~n mind, the committee recommended the creation af a separate judicial organization while the Judge Advocate General's Department (JAG-D) 1) Once charges were referred to trial. this organization would administer and control every phase of the court-martial process except prosecution of the case and clemency actions.LZ Asafurther imitation, thecommitteerecammended thatallpromotiom, efficiency ratings, and specific duty assignments of judge advocates be governed by the JAG-D rather than by local ~ommands.'~

Not surprisingly, senior civilian and miiitaryofficialsaf the War Departmentbridiedattheproposal.'4After ail. the ideaofaseparare court-martial administrative structure iias aimed directly at the heart of the commander-oriented military justice system. Nevertheless, it mas apparent that fundamental legislative reform \%-as imminent unless the Army could persuade Congress to accept a cam-promise

19831 TRIAL DEFENSE SERVICE THE ELSTON ACTIn 1948, the Army briefly obtained compromise legislation when Congress revised the Articles of War...