The Cover-up: Invoking One's Privilege Against Self-Tattoo-Ization - Articles

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Posted by: William Haltom on Mar 20, 2010

Journal Issue Date: Apr 2010

Journal Name: April 2010 - Vol. 46, No. 4

We all have our prejudices, and let me admit mine. I don't like tattoos. Actually, it's worse than that. I hate tattoos. I hate tattoos on men, and I really hate tattoos on women.

I come from a very traditional family. My dad did not wear an earring, and my mom did not have a tattoo. When I was growing up during the Eisenhower administration and the New Frontier, the only man in America who wore an earring was Mr. Clean, the bald-headed guy on the cleanser commercials on TV. He looked pretty goofy wearing one earring. But in the words of the memorable jingle, he could "get rid of dirt and grime and grease in just a minute," and he could "clean our whole house and everything that's in it!"

Mr. Clean was the only guy in America who could get away with wearing an earring. I guarantee you that had my father ever come home wearing an earring, my mother would have pierced both of his ears and his skull with a rolling pin.

And, of course, I can't even imagine what Daddy would have done if Momma had gone to the tattoo parlor and come home with her arms decorated as if she were Popeye the sailor person.

When I was a kid, the only woman I ever saw who wore a tattoo was Lydia the Tattooed Lady. She was the star of the Mid-South Fair in 1959.

But these days, Lydia the Tattooed Lady would hardly stand out at a Junior League meeting.

One of my biggest fears as a father is that one of the three Haltom children — Wally, Beaver or her Royal Highness the Princess — will someday come home with facial tattoos causing them to resemble Mike Tyson. I particularly don't want the Princess to get a tattoo. In my impartial eyes, she is the most beautiful little girl in the world, and I don't want to see any part of her embroidered with a butterfly.

My children know how strongly I feel about the prospects of them getting tattooed. They have countered my concerns by reminding me of the pictures they have seen of me from the 1970s, during a brief period when I sported long hair and a Fu Manchu mustache. I was trying to look like Mark Spitz. Unfortunately, I became the spitting image of Sonny Bono. I responded to my kids by pointing out that while long hair may have been the tattoos of my generation, once that fad ended, it was a fairly easy problem to resolve. And all it took was one quick trip to Floyd the barber.

Scraping off all those tattoos from the butts of generations X, Y, Z and whatever my kids are called will be no easy task. Yes, I understand that there is a now a growing industry in the field of plastic surgery for tattoo removal, or as it is known in the medical field, "reverse tattoo-ization." But until I see a clean-faced Mike Tyson, I refuse to believe it will work.

Apparently I'm not the only one who is prejudiced against folks with tattoos. A lot of people are, and increasingly, they are showing up in juries, particularly in criminal cases. And because of this, for the first time, trial judges are addressing the legal issue of the right to invoke one's privilege against self-tattoo-ization.

The legal issues underlying tattoos first reared its ugly head nearly 20 years ago in the case of Dawson v. Delaware, 503 U.S. 159 (1992). In that case, the United States Supreme Court ruled that the defendant's First and Fourteenth Amendment Rights were violated when the prosecution admitted his Aryan Nation tattoo into evidence. I am not sure how the prosecutor did this. I guess the court reporter or bailiff had to put an exhibit sticker on the defendant's arm. And even then, I'm not sure how they got the exhibit into the record.

And then last year, the United States Court of Appeals for the Eleventh Circuit again addressed the burning (heh, heh) issue of tattoos in the case of Wood v. State, ruling that a prosecutor did not violate a defendant's First Amendment Rights when in closing argument he commented on the defendant's unique tattoos. On one eyelid, the defendant had tattooed the word "lying." On the other eyelid, he had tattooed the word "eyes."

The Eleventh Circuit distinguished Dawson by ruling that the lying eyes reference was not to show the defendant's "disregard for the truth," but to reflect a "motive for his crime."

I wish I had heard that closing argument. I'll bet the prosecutor said, "Ladies and gentlemen, in the immortal words of The Eagles, 'thought by now you'd realize ... there ain't no way to hide your lying eyes!'"

But far and away the most interesting case dealing with the legal issue of tattoos went to trial in Pasco County, Fla., last December. In that case, Judge Michael Andrews granted a motion by the defendant's lawyer in a murder trial to require the state to pay for a cosmetologist to cover the Neo-Nazi tattoos embroidered on the defendant's face, arguing that otherwise the jury would not give the Hitler-wannabe a fair trial.

Critics have said that this was a classic case of a judicial cover-up. And the Tea Partiers are mad that the Florida taxpayers had to foot the cosmetologist's bill of $150 a day for her work during the trial.

Frankly, I thought it was just a make-up call by the judge.

Bill Haltom BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.