Thursday, December 9, 2010

To tattoo, or not to tattoo - you are the judge.

Time to get your input on something, a news article about a trial in Florida. Here are the essential details:

NYT -- A Florida judge has agreed to pay a cosmetologist $125 a day to hide a defendant’s facial tattoos because they would be “prejudicial” in his trial. John Ditullio sports a large swastika tattoo on his neck and a crude insult on the other side—among other tattoos on his face and neck. Upon the motion of his defense attorney, the judge ordered the tattoos covered with make-up in order to preserve Ditullio’s right to a fair trial. Ditullio is charged in a double stabbing that injured one and killed another. He acquired at least some of the tattoos since his arrest for the 2006 incident. [See here for full story.]

So, I have instituted a poll and would love to know what you think. If you were the judge, would you have granted the defense request for a make-up artist, or would you have denied the request? Feel free to post (respectful) comments justifying your ruling.

Some things to consider, perhaps:

1. Potential jurors would, most likely, form some negative opinion about the defendant because of the tattoos. (In my last trial a panel member asked to be excused because he said he'd made up his mind from the defendant's appearance. He was struck by agreement of both parties.)

2. In voir dire, both sets of lawyers (and the judge) would get a chance to test those negative opinions, and ask potential jurors if they could set them aside and judge the case on the evidence alone.

3. From the last line of the story, it looks like he got some tattoos while knowing he was going to trial - has he thereby waived an objection to the prejudicial nature of his tattoos?

4. $125 for some make up? Seriously? That's a crime, right there. . . !

14 comments:

  1. Yeah I heard about this, and I don't get it. I don't get it at all. By this reasoning, every African-American defendant ought to be entitled to a cosmetologist to make him white every day. After all, they didn't ask to be pigmented....this mope did it voluntarily, and now his attorney is claiming it impairs his right to a fair trial. Sorry, I don't get it.

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  2. $125 might include the cost of making a housecall to the courthouse jail.

    My ruling:

    1) Are they prejudicial: Heck ya. I hate him and I haven't even seen a picture.

    2) Can voir dire nullify that: No. And the inevitable appeal would cost the state more than the makeup anyway.

    3) Should he have thought of that before getting tattoos: No. He has every right to get tattoos, and while I'm not a lawyer, I don't see how a right can survive if juries are allowed to be prejudiced when you invoke it. I assume if a juror in voir dire says "If you take the fifth, you must be guilty" they would be dismissed.

    3a) There's also a presumption that the tattooing is completely voluntary and I'm not sure that really holds in a prison anyway.

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  3. Don: Given the research on how attractive people do better in life, including jury trials, I was wondering whether a defense counsel could get court-ordered plastic surgery to counteract the prejudice of ugly-ism!?!

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  4. I have to agree with Mr. Dickson. And why don't we throw in a little cosmetic dentistry for those meth users who find themselves on trial? They could surely use a beautiful smile.

    What would I tell my kids?

    "You should have thought of that BEFORE you got the tats! [and committed crimes...]"

    He accepted the permanent consequences (negative perceptions, perhaps) when he sat still for the tattoo artist.

    Now, could I set aside my perception to give this dude a fair trial? Most likely, but I work in the field of criminal justice, making me NOT the average juror. In fact, I don't get picked for jury duty because of my career.

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  5. I'm a defense attorney with tattoos on my arms - wouldn't it be awesome if I could get the court to pay someone to cover them up during trials? Then I wouldn't have to worry that the jury might see them if I forget to keep my jacket on in the hallway.

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  6. Due to what the tattoos represent majority of the potential jurors when seeing him would already formed in their mind that he was guilty of the crime, and not base their decision on evidence only. The question is can a potential juror be able to honestly push their own thoughts and feelings aside?

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  7. No makeup. To me this would be the same as a defendant who creates a disturbance in front of the jury and then asks for a mistrial. If you create the problem--you dont get to benefit from it. Especially since the tatoos (at least some) were acquired after he knew he would be going to trial.

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  8. I've already had almost thirty plastic surgeries that I didn't ask for, and a few more elective ones sure wouldn't do me any harm if I were being charged with a felony. What else might help? Liposuction? Maybe a nice tan? Hair Club for Men? Could I maybe go to trial in some custom-tailored Armani suits instead of something off-the-rack from Men's Wearhouse? I have real trouble discerning the outer limits of this judge's reasoning.

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  9. Jury of his tattooed peers?

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  10. Thanks for all the comments, folks, I especially wanted to address those made by Scot, who seems to be our loan dissenter.

    Scot, you said:

    "1) Are they prejudicial: Heck ya. I hate him and I haven't even seen a picture."

    Can't argue with that!

    "2) Can voir dire nullify that: No. And the inevitable appeal would cost the state more than the makeup anyway."

    I would disagree and say that voir dire can nullify that. People can look past their first impressions, and if a panel member promises to do so there is no point on which to appeal - the appellate court would take them at their word.

    "3) Should he have thought of that before getting tattoos: No. He has every right to get tattoos, and while I'm not a lawyer, I don't see how a right can survive if juries are allowed to be prejudiced when you invoke it. I assume if a juror in voir dire says "If you take the fifth, you must be guilty" they would be dismissed."

    In the same way he has a right to the tattoos, he has a duty to live with the result of having them. Sure, if he had them on his arms, like our lawyer Jennifer, he has a right to cover them up for trial. But when he puts them on his face, his neck, well, that's his choice and one he should live with.

    3a) There's also a presumption that the tattooing is completely voluntary and I'm not sure that really holds in a prison anyway.

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  11. Interestingly enough, I would be curious to know which would were in place at the time of the alleged crime and which were not. Seems, that there would be some grounds to object to the order based on the fact that any tattoo that was in place at the time of the alleged crime may be part of the identification of the defendant by the victim (i.e. he had a huge swastika on his face) and would covering them up would detract from the credibility of the witness on the stand if they are claiming that the perpetrator had a swastika tattoo and the jury can plainly see that Mr. Cleaned Up Nice Suit and Tie does not have a swastika tattoo on his face...or at least so it seems because the judge has used tax payer money to cover it up.

    Frequently you can admit the booking photo to show how the defendant looked at the time he was booked, much closer, in theory, to the time of the crime. If the victim were unable to identify the defendant because of the makeup, does that mean that the prosecutor would get to admit the photo from booking and show the prejudicial tattoos?

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  12. Rebecca: I'd not thought of that, I can only assume identification isn't an issue in the case. Maybe it's self-defense or something. Now I'm going to go look...!

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  13. Thanks for the response!

    I agree that if the tattoo comes before the crime, it could change things. I was pretty focused on the fact that they came after.

    I thought point #2 was the strongest part of my argument, but I have no experience so I cannot argue the point. From everything I read about the human brain, the subconscious makes up it's mind first and the conscious mind just creates a narrative to rationalize those decisions. So in my heart I do not believe that a juror can set aside prejudice even if they swear to, especially with such a visceral symbol.

    Of course it is visceral - that's why he has it. And I agree that his bad decisions should and will have impact on his life. I just wouldn't want it to make him a scapegoat. Maybe that's an issue for his defense lawyer, not the system. In fact, why isn't the defense footing the bill? They put him a in suit, they should be able to afford some pancake.

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  14. @scot - I don't know about where you live, but either way, it comes out of the county fund around here (or the state), depending on how the appointed attorney is getting paid, at least in my state. The board of indigent defense services (BIDS) (thats what we call it) is funded with money from the state general fund. I am guessing he either has a public defender through a public defenders office or a public defender who is on contract and appointed by the court. either way the taxpayers are paying for it.

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