On 10 May, NMCCA released two opinions dealing with obstruction of justice. One was a 42-page behemoth that resolved an issue of first impression in the naval justice system. The other one was published.
United States v. Culbertson, __ M.J. ___, No. NMCCA 200000982 (May 10, 2007), is an 11-page unanimous opinion authored by Senior Judge Ritter. Culbertson was a JG convicted of twice raping a petty officer. He was also convicted of two specifications of obstruction of justice resulting from his attempts to get an eyewitness to “back up” his denial and his attempt to get another petty officer to dissuade the victim from pressing charges.
For those who like to obstruct justice, the late 1980s and early 1990s must seem like a Golden Age. First in United States v. Gray, 28 M.J. 858 (A.C.M.R. 1989), then in United States v. Asfeld, 30 M.J. 917 (A.C.M.R. 1990), and finally in United States v. Kirks, 34 M.J. 646 (A.C.M.R. 1992), the Army Court handed a surprising string of victories to soldiers convicted of obstruction of justice. Military appellants have vainly been citing that precedent ever since, but these cases’ sway faded as quickly as the Humpty Dance craze. If you Shepardize Asfeld, you will see that it has been distinguished four times and limited once. I think Shepard’s should adopt a new analysis term: extinguished, meaning to be distinguished out of existence. That term would apply to Asfeld.
So it is no surprise that NMCCA rejects the Gray/Asfeld/Kirks challenges to the two obstruction of justice convictions. I won’t go into all of the details. Just realize that those cases seem to be well past their “sell by” dates.
NMCCA also rejects a legal and factual sufficiency challenge to the rape convictions.
Finally, NMCCA considers whether relief is appropriate where the Navy took three years to comply with NMCCA’s previous order remanding the case for a new CA’s action, resulting in the passage of almost six-and-a-half years between trial and redocketing. But there’s no self-flagellation in this opinion, and no relief either.