To Agent TWB, the trial counsel asked, under what authority was the AFOSI asking for the hair specimen from the appellant. TWB replied: “Initially we tried consent. And he didn’t consent to . . . us collecting [his] body hair.”
To former Agent RF, the trial counsel asked if they collected any hair. Agent RF said that, after they obtained a search authorization, they went to see the appellant’s first sergeant. The first sergeant told them the appellant was en route to see his attorney. They asked the first sergeant to call him and tell him to turn around. “He allowed Airman Moran to continue to see his -- see his attorney.”
The trial counsel also asked RF what the appellant’s explanation for shaving off all his hair was. The agent didn’t ask. Not deterred by what he knew would be the answer, the trial counsel plunged onward: “You didn’t inquire?” RF responded: "The reason I didn’t inquire was I felt that was an incriminating question and . . . he’d already asked for counsel.”
The trial counsel asked a local police officer questions about an accident in which the appellant was involved. The officer said that he offered the appellant a consent form to draw blood, but he refused to sign it.
In closing argument, the trial counsel offered the following:
Now these drug charges. What’s probably certainly close to some of the most damning evidence that you have in this courtroom today is the fact that on March 20th he is called into [the] investigations office . . . . The OSI says, “we would like to take your hair.” He says, “No, thank you. I want to speak to my attorney first.”The Court summarizes the posture of the case at trial:
Though Appellant requested and received an instruction on his right to remain silent, defense counsel did not object to either the witnesses’ or trial counsel’s statements. Further, there were no sua sponte curative or limiting instructions to the members mitigating any potential prejudice.You have to wonder if the defense counsel and the judge were sleeping or engaged in a particularly difficult New York Times Sodoku puzzle.
All 5 judges decide the trial counsel's argument was error and assume without deciding that the witness testimony was also error. Nevertheless, any error was harmless beyond a reasonable doubt. Chief Judge Effron and Judge Erdmann write separately to voice concerns over matters in Judge Baker’s decision that they think are unnecessary for the resolution of the case -- e.g., a discussion of implied consent doctrine.