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Extreme Makeover: Criminal Court Edition

Should a court pay to cover up a defendant's tattoos?

By John Schwartz

When John Ditullio went on trial last December in Florida, jurors didn't see the large swastika tattooed on his neck. Or the crude insult on the other side of his neck. Or any of the other tattoos he'd collected since being jailed on charges related to a double stabbing that killed a teenager and wounded a woman in 2006.

Ditullio's lawyer argued that the tattoos might prejudice jurors, who under the law are supposed to consider only the facts of the case (and in this instance, Ditullio's appearance at the time of the crimes). The stakes were particularly high for Ditullio, with the death penalty a possibility.

The court approved a makeover for the defendant, paying a cosmetologist $125 a day to mask Ditullio's post-arrest tattoos during each of the eight days of his trial.

The case shows some of the challenges lawyers face when trying to prepare clients for trial—whether going to a thrift shop so a poor defendant can wear decent clothes, or telling wealthy clients to leave the bling at home. But it also raises questions about how far the legal system—and taxpayers' money—should go to protect defendants like Ditullio, who freely emblazoned his flesh with offensive images.

"It's easier to give someone who looks like you a fair shake," says Bjorn Brunvand, Ditullio's lawyer. "Without the makeup being used, there's no way a jury could look at John and judge him fairly."

But others, like the mother of Kristofer King, the 17-year-old boy Ditullio was accused of killing, were outraged. "Did somebody tie him down while he was in jail and put these tattoos on him?" she asked angrily.

Though other physical features—like a person's race, or even being strikingly attractive or ugly—may prejudice jurors, lawyers can usually ferret out such biases when they're picking a jury, says trial consultant Douglas Keene. "There are extraordinary circumstances, this being an example, that I think require more careful consideration," he says.

In the end, the jury found Ditullio guilty. The day of his sentencing, he chose to wear all black and refused the makeup job to cover his tattoos. He also told the jury he didn't care if he got life or death.

They sentenced him to life in prison for the murder, and the judge tacked on 15 years for the attempted murder.

Why did he refuse the makeup on sentencing day? "I wanted the jury to see me," Ditullio explained from the witness stand.

(The New York Times Upfront, Vol. 143, March 14, 2011)