By The Skin of Your Teeth

by MARILYN PENN December 8, 2010
If you weren’t sufficiently outraged by free college education provided by Wesleyan University for prisoners serving life sentences or heart transplants for murderers on death row,  consider the case of John Ditullio whose lawyer has convinced the judge that the state should pay for a cosmetologist to cover his tattoos so as not to prejudice the jurors in his upcoming trial. The Florida defendant has been in jail for four years accused of a double stabbing that wounded one victim and killed another. His first trial ended in a mistrial. During this time, he has had himself tattooed with swastikas and curses on his neck and a long scar on the right side of his face. The cosmetologist’s fee is $125 per day for as long as the trial takes.
Obvious questions are: why is tattooing even allowed in prison? How about the prisoner buying some inexpensive turtle neck shirts that would cover the hostile messages he selected for his public persona? If tattoos are deemed necessary for concealment from the jury, why not extend that notion to more basic areas of presumed prejudice – why not pay to have all black defendants covered with whiteface in court? Judicial activists often point to the disparity between black and white convicts on death row- wouldn’t some gifted make-up artists be helping to level the playing field?  And why not hire acting coaches to correct bad elocution and manicurists to give a softer look to criminals’ hands? How about preppy hairpieces for bald bikers and veneers for those whose brawling has left them dentally challenged. The primary question is   why the state should assume responsibility for helping a defendant to be duplicitous about himself. John Ditrullio is an adult who made a deliberate choice to have himself permanently adorned with symbols of hate and violence – doesn’t this speak to his character and mindset and shouldn’t those be weighed along with other evidence in a jury’s evaluation of all the facts?
Increasingly, trials have become less about the pursuit of truth and justice and more about the strategy of adversarial litigants. The constitutional concept of jury of one’s peers has now become an industry of analyzing which jurors are likely to be more sympathetic to the defendant’s plight. “ Peers” has morphed into “supporters” and all sorts of sophisticated psychological and sociological skills have been enlisted to manipulate the desired outcome in jury selection. It has long been a practice for male defendants to come to jail dressed in business suits and for women to revert to no hair dye and very tailored clothes and hairstyles. Now we are upping the ante to disguise the markings a person has chosen to be part of his permanent physiognomy.
A man who elects to sport a swastika on his skin in America is unequivocally trumpeting something about himself that he wants us to hear – why deny him the freedom of expression that allowed him to do this in the first place? Are we already such a nanny state that we agree to his freedom  to discomfit others but not to have others rationally form negative impressions of him? We’re now protecting the bullies from negative stereotyping? Admittedly, someone can be an anti-social, hostile provocateur without being a murderer. But that is precisely the job of the defendant’s lawyer to prove to the jury without taxpayers being enlisted to help him camouflage his client. Presumably he will have hard evidence to show why this man is not the perpetrator or why this man is not the perpetrator of a capital crime. Turning a neo-Nazi into an altar boy is a travesty of the criminal justice system and one that law abiding citizens should not be asked to subsidize. Contributing Editor Marilyn Penn is a writer in New York who can also be read regularly at

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