The Navy legal system is making some changes after a military judge’s failure to renew her law license resulted in at least one botched court-martial.
A decision handed down by the Navy-Marine Corps Court of Criminal Appeals found that the findings and sentence of Aviation Electrician’s Mate First Class Aaren Painter, a USS Essex sailor convicted in February of photographing unclothed shipmates without their consent, should be set aside and a rehearing authorized. The problem, the appellate court found, was that the military judge assigned to the case hadn’t been eligible to practice law at the time.
“The military judge later revealed that between 1 July 2021 and 10 March 2022, she had been administratively suspended from the practice of law by her licensing agency, the State Bar of California,” Cmdr. Christopher J. Deerwester wrote in a published opinion for NMCCA released Sept. 28.
According to the document, Cmdr. Andrea K. Lockhart, the judge and an experienced former Navy prosecutor, reported she had first learned of her administrative suspension due to failure to pay California bar dues on March 10. She informed the parties in “several cases,” including Painter’s, of the issue on March 30. The California State Bar charges attorneys $515 per year to maintain a current law license.
“We do not think that Congress intended to authorize the Judge Advocates General of the armed forces to certify as military judges any attorneys who, in the judgment of their licensing authority, were unfit to practice law in their jurisdiction,” the court found. " … After careful consideration of the record and briefs of appellate counsel, we have determined that, due to the jurisdictional defect arising from the military judge being suspended from the practice of law by her licensing authority, the findings and sentence are void and cannot be approved.”
A Navy spokesman, Lt. Andrew Bertucci, told Military Times via email that the situation had resulted in policy changes.
“The Chief Judge of the Department of the Navy (CJDON) has implemented key corrective measures,” he said. “Before attending their initial mandatory training, all new military judges are now required to provide CJDON with proof of their good standing with licensing authorities. Further, all military judges are now required to verify their licenses annually to various internal authorities.”
Military judges already have to attest to their good standing with the relevant licensing authority by making a verbal declaration for the record during legal proceedings.
It’s possible that other cases may be affected by this error. In all, Lockhart presided over nine courts-martial during the period in which her license was suspended, Bertucci said. She also served as preliminary hearing officer for two Article 32 fact-finding hearings, he said, and acted on an unspecified number of warrant applications.
“To date, U.S. v. Painter is the only case reviewed by the Navy-Marine Corps Court of Criminal Appeals where Cmdr. Lockhart’s lapse in licensure was raised as an issue,” Bertucci said.
He wouldn’t speak specifically to any disciplinary actions, saying only that the issue had been addressed “in accordance with Navy policy.”
According to published Navy results of trial, Painter pleaded guilty to indecent recording pursuant to a plea agreement at a special court-martial in San Diego. The appellate ruling states he had photographed “the genitalia of unknown individuals without their consent while onboard USS Essex,” a Wasp-class amphibious assault ship. He was sentenced to confinement for eight months, reduction in rank to E-3, and a bad-conduct discharge.
The invalidation of findings and sentence means he’ll likely return to court-martial, and potentially face a different sentence.
First admitted to the California Bar in 1998, Lockhart has served as a Navy prosecutor in a number of high-profile cases, including that of Abd al-Rahim al-Nashiri, charged with masterminding the 2000 bombing of the USS Cole, and the 2018 court-martial of three SEALs charged with war crimes.
Lockhart did not respond to a request for comment on the case.
It’s not the first time a licensing snafu has had major implications for military court cases. In 1993, the Marine Corps discovered that one of its hotshot attorneys, Capt. Jeffrey Zander, had never bothered to take the bar exam. At least 21 cases were affected, and 19 sentences overturned, two of them long prison terms, due to Zander’s deception. According to an account published in the ABA Journal in 1995, this episode resulted in the “Zander Rule,” requiring Marine Corps judge advocates to submit annual proof of their good legal standing to military authorities.