Court reviews Shirley hate crime case

A federal appellate court will hear arguments Tuesday on whether the jury that convicted a man in the near-fatal beatings of two Mexican day laborers in Shirley should have been allowed to see evidence about his white supremacist tattoos.

Lawyers for Christopher Slavin and the Suffolk district attorney's office will argue the issue in Manhattan before the U.S. Court of Appeals for the Second Circuit.

The attack 10 years ago by Slavin and co-defendant Ryan Wagner was the first of several that brought national attention to Suffolk over violence against Hispanic day laborers.

Slavin, now 39, and Wagner, now 29, were convicted of luring Israel Perez and Magdaleno Estrada, two Mexican day laborers from Farmingville, to an abandoned warehouse in Shirley in September 2000 with the promise of work. Once there, the victims testified, Slavin clubbed Estrada in the head with a posthole digger and Wagner slashed Perez with a knife. Slavin and Wagner were convicted in separate trials of attempted murder and assault. Slavin was sentenced to 25 years in prison.

Slavin's attorney, Robert Del Col of Smithtown, said his client's 2001 conviction was improper because prosecutors went too far in forcing Slavin to display the tattoos and in trying to interpret them for the jury. "They forcibly stripped him and took photographs of his body," he said. "He had a swastika the size of a dinner plate on his chest. It was devastating."

Slavin also had other tattoos, including one of a kneeling Jew with money spilling out of his pockets and various acronyms. A prosecution witness told jurors what the acronyms meant, which Del Col said was "like having a surrogate testify to what was in Chris' head."

It's as if Slavin were forced to testify - a violation of his Fifth Amendment right against self-incrimination, Del Col said.

Suffolk prosecutors reject Del Col's argument. "We will argue there is an absence of compulsion," said Bob Clifford, a spokesman for the district attorney's office. "We will also be arguing that having a third-party witness interpret a tattoo photograph is not obtaining testimony from the defendant."

Jurors might come to a conclusion about what Slavin once thought because of the tattoos, but "just because they were incriminating did not make them testimonial," Clifford said.

Eric Freedman, a constitutional law expert at Hofstra University, was skeptical that Del Col's argument would be convincing.

He said a different argument could be successful, however, citing a 1992 Supreme Court case in which the justices ruled that the First Amendment protects a defendant's right to join racist groups. Therefore, membership in groups such as the Aryan Brotherhood can't be held against a defendant during sentencing, the court ruled.

Defendants often are compelled to show tattoos, but Del Col said the purpose is identification. In this case, neither victim saw the tattoos, so the only purpose in showing them to the jury was to establish Slavin's motive for attacking Perez and Estrada, he said.

"I know the facts here are ugly and unpopular beliefs are being discussed," Del Col said. "But that's when the courts most need to step in."