By Gail Parsons, Fort Riley Public AffairsNovember 21, 2018
FORT RILEY, Kan. -- Using the concept of do less -- achieve more, the Fort Riley Staff Judge Advocate General's office is coming to the end of a one-year pilot program designed to increase expertise among the trial counsel.
Maj. Andrew Smith, chief of military justice for 1st Infantry Division, said members of the JAG Corps were looking at courts martial across the force and noticing a decrease in the number of cases being tried. A plan was devised to restructure the way the attorneys operated, which would result in an increase in trials. Smith believes the pilot program was successful.
"Before, we were structured where a unit would have a trial counsel and (that attorney) would advise commanders on Article 15, chapters and a whole bunch of other stuff," Smith said. "Going into the courtroom was one small aspect of what they did. What we've done is create a separate team whose whole focus is trying courts martial. Their focus is going to trial."
At Fort Riley, there are four trial counselors for six military units. Their primary role is to advise the commanders. They still go to court but they are second chair to the three litigation attorneys who are becoming more versed in courtroom procedures.
The litigation attorneys are the ones who handle the motions and discovery -- taking the lead in the courtroom.
"Before, everybody was a trial counsel," Smith said. "The trial counsel would work with [U.S. Army Criminal Investigation Command, formerly Criminal Investigation Division] and advise the command. Then, after advising the command, if it was going to a court martial, they would go all the way to trial.
"You're not becoming an expert when you are doing all of this," Smith said. "Now, instead of doing 10 things you are doing five things over and over and becoming an expert."
Having the time and knowledge to delve into issues pertaining to legal tasks like motions and discovery can make the difference in the integrity of how a case is handled.
When Brig. Gen. Joseph B. Berger III, Commander, United States Army Legal Services Agency and Chief Judge, U.S. Army Court of Criminal Appeals, visited the Fort Riley Staff Judge Advocate in October, during one of his presentations he made it clear how important he felt discovery was and why the corps had developed a new eDiscovery division.
"What we discovered was that we did not have a program, we had a software tool we were using that was incomplete, at best, and only addressed a small piece of it," Berger said. "What we also found was the courts are telling us 'a failure to do complete discovery is an ethical failure' and could lead to negative ruling from the bench."
Smith said part of discovery is simply knowing the rules.
"Knowing what we have to provide (the defense), when we have to provide it and what we can't provide," he said. "We have rules as far as being an attorney and rules being military attorneys."
The litigation attorneys are involved in the cases right from the start, they just don't advise the commanders anymore.
"Let's say, for example, we look at the blotter and Soldier 'X' was arrested for doing whatever misconduct," he said. "If it is something fairly significant that we think might eventually be a court martial, I will assign a litigator to it. That way they are getting spun up on the facts early, working with CID early and working with trial counsel … (who) is primarily advising the command. As the case progresses (the litigation counsel) take more responsibility in the case."
In addition to increasing the expertise among the trial counsel, the goal of trying more cases has been met. From November 2016 to November 2017, Fort Riley SJA tried 16 courts martial. The following year, same timeframe, they tried 32 cases.
Smith said there were many variables in addition to expertise that lent to the decrease of cases.
"A lot of things are at play," he said. "We have readiness as a focus. While we've been at war ... a lot of times going to courts martial isn't always the most expedient for readiness. Sometimes, a lot of times maybe, there is another outcome whether that is administrative action or a chapter that might happen."
The Army was also putting a focus on trying sexual assault cases, which put some of the general crimes, like larceny, on a back burner, he said.
"We lost focus a little," Smith said. "We want to make sure we look at all crimes and domestic violence is one of the big ones that we are looking at advising commanders the right way."
The restructuring is allowing them to better spread their focus on all crimes. What he has observed in the past year, is the benefit of increased time in the courtroom given to the attorneys.
"You see more confidence in the courtroom," he said. "The way you get comfortable is getting into the courtroom. The more cases you try, the more comfortable you are with the rules. You become a more effective advocate the more time you are in the courtroom."
Smith said he believes the program works because the trial counselors are more focused on advising commanders and the litigation counselors are focused on the courts martial.
"More experience benefits everybody," he said. "It benefits the commands as they get better advice. It benefits the Soldiers who are under those commands. It's never good when they are getting wrong advice -- from the commander down to the private. They will build expertise going forward."