The case of the "recently hirsute Appellant"

Here is the principal issue that came to my mind upon reading Judge Baker's majority opinion in United States v. Moran, __ M.J. ___, No. 06-0207/AF (C.A.A.F. June 22, 2007). Had the word "hirsute" ever appeared in a published military appellate decision before?

Here's why that rather odd question came to mind. Moran was charged with using a pharmacy shelf's worth of controlled substances. OSI agents wanted to collect hair samples. One OSI agent took the stand and, without defense objection, testified that Moran refused to give consent to OSI collecting a body hair sample. Another OSI agent then testified about Moran going to meet with his civilian defense counsel. Then came the most entertaining part of the opinion. When OSI finally obtained authorization to seize a sample of Moran's body hair, Moran no longer had any. He had been shaved clean. This little colloquy then occurred between the OSI agent and the military judge (the military judge!):

MJ: What was Airman Moran's explanation for shaving all of his hair off? Did you ask him? Did he give you one?
[RF:] No, sir, I didn't.
MJ: You didn't inquire?
[RF:] The reason I didn't inquire was I felt that was an incriminating question, and I would have to advise him of his rights. He'd already asked for counsel. I was just there to obtain a hair sample due to the search authorization, and not
to ask him questions.

This led to CAAF's classic observation:

Officer RF's knowledge of Appellant having already secured a lawyer was not necessarily presented as evidence of guilt by Officer RF, but rather was made in direct response to the military judge's inquiry as to the agent's omission of what seemed an obvious and necessary question: asking the recently hirsute Appellant why he no longer had any hair.

Moran, slip op. at 14.

And, yes, in case you're keeping score at home, "hirsute" had been used in two previous military justice appellate decisions. United States v. Johnson, 6 M.J. 936, 937 (A.C.M.R. 1979); United States v. Flesher, 37 C.M.R. 669, 673 (A.B.R. 1967).

But ultimately CAAF concluded that these and other references to Moran's invocation of various constitutional rights were, if error, harmless beyond a reasonable doubt. (CAAF held that the TC's characterization of Moran's refusal to provide a hair sample and desire to speak to an attorney first as "some of the most damning evidence" was certainly error, but harmless as well.)

Judge Erdmann and Chief Judge Effron wrote separately to opt out of certain portions of the majority opinion that each thought were unnecessary to the final result.

So Moran's appeal failed to shave any time off of his confinement.