There's little question that Christopher Slavin meant to communicate something when he covered himself in tattoos of swastikas and other symbols of hate, appellate judges and attorneys agreed Tuesday.
The issue, then, was whether Slavin meant to display it to the Suffolk prosecutors who forced him to disrobe and show the tattoos to the jurors who convicted him of nearly killing two Mexican day laborers from Farmingville nearly a decade ago.
Slavin, now 39, and Ryan Wagner, now 29, were convicted of attempted murder and assault in separate trials for luring Israel Perez and Magdaleno Estrada to an abandoned warehouse in Shirley. The attack was the first of several that highlighted tensions in Suffolk between whites and Hispanic day laborers.
Slavin's attorney, Robert Del Col of Smithtown, has appealed his conviction, arguing that being forced to show his tattoos was like being made to testify against his will, a violation of the Fifth Amendment right to remain silent.
But judges on the U.S. Court of Appeals for the Second Circuit in Manhattan seemed skeptical. "If your client had written out his plan . . . on a piece of paper and put it in his pocket, that could have been seized by the police," Judge Barrington Parker told Del Col.
"This is not like where a person is compelled to make a statement," said Judge John Walker Jr. "He got the tattoos himself."
Walker cited a recent case he helped decide, in which the court said police could act on information they notice in a tattoo. "The voluntary tattooing of an incriminating word to arm was, like the voluntary preparation of documents, not the product of government compulsion," that decision said.
Assistant District Attorney Michael Blakey argued that a defendant can't hide existing incriminating evidence.
"The Fifth Amendment only says you cannot be a witness against yourself," Blakey said. "It doesn't put off-limits every prior communication. . . . The Fifth Amendment does not guarantee him a right to keep his shirt on and conceal the tattoos, the content of which is already known to the government."
Walker noted that drawing blood as evidence was once seen as an "outrageous" intrusion, but now it's routine. Del Col said that's no reason to weaken constitutional protections further.
The court will decide the case in a few weeks.