I (www.jamesphillipslaw.com) spent some time in the Trial Defense Services (TDS) at Fort Campbell, KY. During my time at TDS, I learned a lot about military defense work. But as a TDS attorney, I was always offended by the perception that being a government attorney, I was simply a government hack doing the will of the chain of command.
To this day, I am always surprised at this perception of TDS. As a civilian military defense counsel, I frequently get hired by Soldier clients who are concerned that their TDS attorney will not represent them with full vigor because they believe the TDS attorney is an agent of the government. I never believed this and have always argued that TDS attorneys are very good at what they do.
Yet, I do know where this belief comes from. I had a client that was extremely difficult to deal with. She was not able to deal with the Army and probably should have been discharged long before we went to a Court Martial. Her charges were relatively minor, consisting of FTRs and failures to to properly follow the will of her superiors. Her TDS attorney, who was on the case before I was, at one point clearly decided that he agreed with the Chain of Command and he began to do things that helped them with their case. In fact, he was later called as a witness against her at trial, and luckily for him and his license, he was not to be found.
The problem for this TDS attorney was that he had lost perspective. He was on his way out of TDS. He had spent almost three years as a defense attorney and had many victories on his mantle. But, at the point he began to represent my client, he was already reassigned as a brigade trial counsel. Unable to see the inherent conflict of interest, he was worried about sending the wrong message to the chain of command, so he began helping them with their case against my client.
This is the flaw with TDS. Although they are insulated against the chain of command for most of their time as TDS attorneys, they are open to undue influence at certain times in their career. One of those times is when they are moving back and forth between TDS and their regular units. For most of a JAG attorneys career he will be working for the US government. Most TDS attorneys only spend a relatively short period of time as pure defense attorneys. Seeing their attorneys as prosecutors later, causes many Soldiers to question the defense that they received at the hands of TDS.
This perception is a problem. The military system of justice is frequently questioned as being unfair. The military should do all that they can to destroy this perception.