Tattoos and the Constitution

John Ditullio before and after his makeover

OK, here's an issue that our Founding Fathers definitely did not consider when drafting the Constitution--the relationship between a defendant's tattoos and his or her right to a fair trial.   In a recent case in my new home state of Florida, the defendant (pictured here) won the right to have the State pay $125 a day for a cosmetologist to cover up his tattoos each day before trial.  Defense counsel argued that the tattoos would be distracting or prejudicial to the jurors, and hinder the defendant's ability to obtain a judgment based on the facts, saying, "There's no doubt in my mind--without the makeup being used, there's no way a jury could look at John and judge him fairly... It's too frightening when you see him with the tattoos." 

It is really not my intention to use this blog as a space for any sort of political commentary but come on.   I am the first person to admit that I am not a big civil libertarian.  (Yes, I was once excused from jury duty because I told the judge I wasn't a firm believer in the presumption of innocence--the judge wanted to disbar me then and there.)  And I have to say that I agree with defense counsel's concerns in this case.  I don't understand the concept of tattoos, even one as benign as a little rose on the small of a back.  So to be on a jury looking at a defendant with a big swastika on his neck would probably influence me.  And I also understand this issue as an extension of a defendant changing his or her appearance in other ways for a trial.  It's long established that it would be prejudicial to require a defendant to wear a prison jumpsuit during trial and I have no problem with that.   To be consistent, a defendant should have the right to use makeup to cover up tattoos during his or her trial.  But so far as I know, the State isn't required to pay for the defendant's clothing for the trial so why should the State be required to pay for a cosmetologist???  

As an aside, I just finished reading Michael Connelly's The Reversal and the issue of covering up a defendant's tattoos actually came up there.  (So kudos to Connelly for staying on top of the latest legal issues.)  In the book, the defendant was being retried after a reversal of an earlier guilty verdict.  He had spent 20+ years in jail and got the tattoos while there.  Defense counsel made an argument about tattoos being a part of prison life--prisoners get them to try and intimidate others or show their gang affiliation--sort of a survival technique.  Because the defendant had gotten the tattoos while he had been unlawfully imprisoned, he should have the right to cover them up during the retrial. Perhaps this is an argument that defense counsel made in the Ditullio case as well.  The article in the NY Times notes that Ditullio got the tattoos after his arrest on murder charges and that the first trial ended in a mistrial.  The article does not, however, go into the arguments that defense counsel made in detail so I don't know if the timing of the defendant being tattooed was a factor in the court's decision.

I would love to be back in Larry Tribe's Constitutional Law class and hear students discuss tattoos and the Constitution (no doubt it would be a lively debate!)  No matter where you come out on this issue, it makes you realize that the law is always evolving to address the world that we live in today, which is a great thing.