MURDER ACCUSATIONS, TEMPORARY TATOO CONCEALMENT, AND THE PRACTICE OF LAW

Michael Sean Quinn*

            Each of the following men, X, Y, and Z, is to be conceived as a defendant accused of murder in a Florida state court.  In addition, each of them had tattoos visible to ordinary observers. One of them, Y, has very controversial tattoos, including “Fuck you” and a swastika plus a line of  Frankenstein-like stitches down his face. 
Each of these defendants requested that he be provided with makeup of cosmetic services to conceal them.

In the case of X, his lawyer applied them from a supply provided him by the relatives of the client, i.e., the accused.

In the case of Y, the court ordered the services of a cosmetologist at $ 100.00 a day.

In the case of Z, the judge refused to provide a make-up artist.  The press report does not say whether Z could use the “X-option.”

I have doubts about permitting this sort of thing at all.  The accused is trying to conceal an important feature of who he really is, and it seems arguable to me that the jury should actually see him.  I can’t imagine that there is a 5th Amendment right to conceal the “Fuck You” locution you have stamped on your forehead. 

For me the more interesting question is the case of X.  In that case X’s lawyer was applying the makeup him/herself.  (I am not trying to guess whether the lawyer was male or female, though I certainly couldn’t do it, nor can any of the men I know, granted that I am a bit of an introvert and may simply have never had sufficiently intimate conversations with males to be in the know.) In any case I wouldn’t do it; I’m sure I don’t know how, and I doubt I would want to learn. 

 In any case,  I feel certain that that this fact does not diminish my credentials as a capable lawyer. Then again, maybe I’m wrong. I certainly had a duty to zealously pursue my client’s interests and to zealously advocate his case. Does the fiduciary level of loyalty require that I do a makeup job on him?

The problem of the lawyer for X is that s/he was helping X present something false to a tribunal., namely “who” he was.  Lawyers are forbidden from doing this when it is testimony (the hear-able) or documents (the readable). So isn’t there something wrong about a lawyer helping a client conceal from the triers of fact the actual physical appearance of the defendant.

Suppose a man with a swastika tattooed on his face, and he was accused of the murder a Jew—say, a militant West Bank radical sympathizer.  Surely that particular tattoo on X’s face would be relevant to some degree to determining something relevant to the charge.  The court is not demanding that he say anything. It is simply requiring him to appear as he really is.

Surely, if the alleged murder had occurred 10 year before, and X had immediately had his tattoos removed somehow, other people or photos could be used to create a picture of his frames of mind.

Now, there are lots of the exceptions to the requirement that an accused present himself as he, as it were, really is. A man who persistently walks nude in city parks should not be required to appear naked at trial. Quite the opposite. That’s entirely different, though the possibilities for humor are immense. 

 But what do we do about this one. The tatoo says “Judge Joan [the judge sitting in the case] gives great blog jobs”  One is tempted to say, “That on has to go.” But exactly why? 
 Michael Sean Quinn, Ph.D., J.D.
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