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Bar News - January 20, 2016

Criminal Law: Defending Those Who Defend America


US Army National Guard Trial Defense Services a New Phenomenon

Shown here receiving an award, Col. Patrick Barnett, founder of TDS, died suddenly in 2015.

There are some special people that come into your life only for a brief time, but make a big impression. Col. (Ret.) Patrick Barnett, the grandfather of the National Guard Trial Defense Service (TDS), is one of those people.

I first met Barnett at the Judge Advocate General’s Legal Center and School in Charlottesville, Va. Early in my legal career, I took time off from my civilian job as a New Hampshire Public Defender to join the Army Judge Advocate General Corps. At this same time, in 2012, the Army National Guard and Barnett were recruiting officers to help introduce TDS to each National Guard located in the 54 states and territories. Because I had some litigation experience, Burnett invited me to lunch.

As a young lieutenant, I was nervous to sit down with an accomplished military veteran, certain that I would say something to reveal my lack of experience and worried that my badges were affixed to my uniform incorrectly.

Although both of these things were probably evident, Barnett immediately put me at ease by sharing stories of his home and life experiences; a comforting topic, as for several months I had been at Army training, away from my home and family. Getting to know Barnett was a transformative experience personally and professionally. He quickly instilled in me the importance of protecting the rights of soldiers, the right way – with courage and professionalism.

Last summer, soon after he retired from the military, Barnett was injured while working on the family property and unexpectedly passed away. However, the Army National Guard Trial Defense Service that he shepherded into the National Guard lives on, and the important job of protecting the rights of National Guard Soldiers will forever be his legacy.

Story continues below.

Structure and Purpose of TDS

In the National Guard, the adjutant general, a two-star general appointed by the governor, and subordinate commanders make the decision to either prosecute or take adverse action against soldiers. They are advised by the Staff Judge Advocate (SJA) as to their legal options. The SJA office is essentially the prosecutor’s office for the military. The TDS defense counsel is the military equivalent to a public defender and represents soldiers facing a court-martial, non-judicial punishment, or an administrative action.

The primary mission of TDS is to provide zealous representation to soldiers and protect their interests, work that is often at odds with the SJA’s legal advice to commanders and the Adjutant General. Unlike their civilian counterparts, military defense counselors are subject not only to their state ethical rules, but also military law and ever-changing regulations.

Before TDS, military defense lawyers were supervised by the very same agency responsible for the prosecution of military crimes and regulatory violations. The creation of TDS was the answer to the obvious conflicts created by intertwining prosecutorial and defensive responsibilities.

TDS is an independent “stove-pipe” organization made up completely of defense counsel and paralegals. It has a separate technical chain of command to ensure that a defense lawyer will not be evaluated or disciplined by a lawyer or commander with prosecutorial responsibilities. TDS also ensures that counsel receive adequate training and support, so they can effectively represent their clients.

Surprisingly, TDS is a new organization in the National Guard. It’s creation followed the active component’s TDS, established in 1980 and the Army Reserve’s TDS in 1993. These new organizations were needed to ensure that soldiers have confidence that their attorney has their best interest in mind and not those of the commander or prosecuting attorneys in the SJA office.

Only in 2005, and grown from Barnett’s leadership, the Army National Guard finally recognized the need for a vigorous and independent trial defense organization in the Army National Guard. This coincided with the Army’s burgeoning requirement for a larger operational reserve of trial defense personnel due to the wars in Iraq and Afghanistan.

By the summer of 2008, the Army had approved both the growth of the active TDS and the creation of Army National Guard TDS. The National Guard supported and implemented seven regional trial defense teams and 28 state trial defense teams. Together these teams comprise 180 authorized personnel.

In 2014, the Army approved the plan for a permanent headquarters organization and created the Office of the Chief, Army National Guard TDS. Around the country today, TDS defends the 350,000 soldiers assigned to their respective state National Guards. Secondarily, these attorneys serve as an operational reserve for the active component’s trial defense service. The unofficial TDS motto is appropriately “Defending those that defend America.”

In the New Hampshire Army National Guard (NHARNG), Capt. Barry Emmert is leading the way as the first and only NHARNG TDS Judge Advocate available to soldiers across the state. For the last three years, Emmert has served TDS and is committed to protecting soldiers’ rights.

According to Emmert, “TDS offers the assistance of counsel in the form of services to our soldiers. This right to counsel protects soldiers from being subjected to criminal or administrative proceeding in an unfair manner.” In New Hampshire, there are military installations in a number of remote and scattered locations. Emmert notes that, “It’s important that we give the same level of attention to a soldier in Berlin, NH, as we do to a soldier in Manchester. A big part of my job is making sure that happens.”

Although Emmert is the only TDS Judge Advocate in New Hampshire, he has the support of fellow TDS Soldiers, not only in the surrounding New England states but the entire country as well. He notes, “The practice of law in the Army JAG Corps and especially within the TDS function is very collaborative. The concept of teamwork and supporting other JAGs is a trait embedded within the JAG Corps - the oldest law firm in the United States.”

This esprit de corps and commitment to National Guard Soldiers is exactly what Col. Barnett had in mind when he guided the ARNG’s creation of the TDS function. It is reassuring to know that Barnett’s dedication is alive and well in New Hampshire and lives on in the hearts of Judge Advocates across the country who share his vision. TDS Judge Advocates will remain stewards of an organization that Barnett worked so hard to establish.

Capt. Luke Webster

Capt. Luke Webster is a member of the Vermont National Guard, First Detachment, 328th Trial Defense Services.

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