ALBANY, N.Y. — New York’s highest court ruled Tuesday that a defendant who refused to testify at trial couldn’t keep his tattoos from speaking against him.
Photographs of defendant Christopher Slavin’s many white supremacist tattoos were used against him in a trial over the brutal assault of two Mexicans in Suffolk County. The tattoos weren’t used to identify the suspect – the victims hadn’t seen the tattoos covered by Slavin’s clothing – but instead were used to help determine Slavin’s state of mind and motive in the attack.
Slavin was convicted of second-degree attempted murder, first-degree assault and other charges in the brutal attack with a friend on two Mexican workers in Suffolk County in 2000.
The tattoos include: profanities regarding “all police,” hatred to “the world,” Nazi swastikas, “New York Hate Corps,” a cartoonish figure with a large nose wearing a skull cap with money protruding from his pockets and about to be kicked by a skinhead racist with an ax, Viking figures, Celtic crosses and a Nazi “SS” symbol.
The stripping of Slavin and the forced photographing of the tattoos was seen by defense attorneys as a violation of Slavin’s Fifth Amendment rights against self-incrimination.
Slavin is serving 25 years to life in prison for the attack.
“Although the jurors may have inferred defendant’s motive from the existence of the tattoos, the tattoos were not compelled testimony within the scope of the privilege” under the U.S. Constitution’s amendment, according to the decision that split the court, 4-2.
Prosecutors “did not force defendant to reveal his thoughts and beliefs; they presented an expert witness who testified about the customary meaning of the images depicted by defendant’s tattoos,” the decision stated. “Nothing that occurred here implicated defendant’s privilege against self-incrimination.”
Using tattoos against the bearer is a new one for the National Tattoo Association based in Allentown, Pa., which promotes tattoos as an art form.
“Everybody gets different types of tattoos,” said Flo Makofsky, treasurer of the group. “It really has nothing to do with what a person thinks … (but) we don’t recommend people get tattoos like that, nothing hurtful.”
The New York Civil Liberties Union had no immediate comment on the decision.
Judge Carmen Beauchamp Ciparick wrote a strong dissent that called one of the majority’s analogies to written documents “dubious at best.”
“Surely the forced strip search of a defendant constitutes a far greater invasion into privacy rights than a subpoena for documents,” she wrote.
“I would conclude that defendant’s privilege against self-incrimination was violated. In ruling otherwise, the court has misunderstood the import of the Supreme Court’s relevant precedent,” Ciparick wrote.
Slavin’s “heinous crimes and despicable beliefs do not exempt him from the protections of the constitution or the law … tattoos, obtained by compulsion, to demonstrate his subjective beliefs and thought processes plainly violated his privilege against self-incrimination.”
She notes, however, that the tattoos didn’t result in Slavin’s conviction on the most serious charges for which there was “overwhelming” evidence. Still, she said that an aggravated harassment charge should have been reversed.
Slavin’s attorney, Robert Del Col, didn’t immediately respond to a request for comment.
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