References to tattoo didn’t violate defendant’s religious liberty

Wednesday, March 18, 2009

A prosecutor did not violate a criminal defendant’s First Amendment rights when he referenced his tattoo during the penalty phase of his trial, a federal judge in Texas ruled recently.

Martin Robles and another man were indicted on charges of entering a home and killing two men in 2002. A Nueces County jury convicted Robles of capital murder and the trial judge sentenced him to death. Robles appealed his conviction in state court with no success. Robles then filed a collateral challenge to his underlying conviction in federal court — an action known in legal terms as a petition for a writ of habeas corpus. In a habeas claim, a criminal defendant contends that the government is wrongfully detaining him or her because of some sort of constitutional error.

In his petition for habeas corpus, Robles made several constitutional challenges, including an argument that the Texas death-penalty law violated the Eighth Amendment right to be free from cruel and unusual punishment. Robles also advanced a First Amendment-based claim, arguing that his religious-liberty rights were violated when the state placed into evidence his tattoo of a religious figure. As described in trial proceedings, the tattoo depicted “Jesus with a demon devouring his brains.” During the trial, the judge forced him to remove his jacket and show the tattoo, located on his shoulder, to jurors.

Death-penalty cases come in two phases: (1) the guilt/innocence phase and (2) the penalty phase where it is decided whether the defendant receives the death penalty or a life sentence. During the penalty phase of Robles’ trial, the prosecutor said:

“You have a demon eating the brains of Christ. … Now, I don’t know what that means, but to me it’s a bad thing. That to me is a philosophy. I don’t know if it’s satanic. I don’t know what in the Sam Hill it is, but if it tells you something about him as a person, that ought to tell you where his belief system is. His conduct shows you where his belief system is.”

Robles contended that the references to the religious nature of the tattoo and the “satanic” and “belief systems” comments by the prosecutor infringed on his First Amendment free-exercise-of-religion right.

However, the reviewing federal district court disagreed in a March 6 opinion in Robles v. Quarternman.

“Robles’s tattoo was presented during the penalty phase, when a defendant’s character might be relevant to the issue of future dangerousness,” U.S. District Judge Janis Graham Jack wrote. “As the prosecutor’s comments … make clear, the prosecutor argued that this tattoo reflected a violent character; he did not make any appeal to religion.”

Jack distinguished Robles’ case from the 1992 case Dawson v. Delaware, in which the U.S. Supreme Court ruled that a defendant’s First Amendment associational rights were violated when prosecutors introduced into evidence his membership in a white supremacist group when such association had nothing to do with the underlying crime. The Court noted that the First Amendment “does not erect a per se barrier to the admission” of evidence of beliefs and association. However, the Court in Dawson pointed out that “elements of racial hatred were … not involved in the killing.”

Applying Dawson, Jack determined that the question was whether Robles’ tattoo was relevant evidence to his underlying crime and violent nature. She concluded that the “tattoo constitutes evidence relevant to a material issue, i.e., Robles’s violent nature and the likelihood that he would commit future acts of criminal violence.”

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