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Hernandez’s tattoos may open legal Pandora’s box

March 16, 2017

If Aaron Hernandez’s tattoos are used against him in his double-murder trial, it will set off a legal chain reaction that could forever change the law in Massachusetts.

And, if the former Patriot is eventually found guilty, the tattoo issue will definitely be grounds for appeal and could weaken the verdict.

David Nelson, a California tattoo artist, testified yesterday that Hernandez went to him for tattoos of a revolver cylinder with one chamber empty, gun muzzles, a shell casing and the phrase “God Forgives” — written backwards — roughly nine months after the former tight end allegedly killed Daniel de Abreu and Safiro Furtado in 2012 in Boston.

The jury did not hear this testimony. It was given during a gatekeeping hearing in front of Superior Court Judge Jeffrey Locke. He is expected to decide today whether to let Nelson testify about his handiwork in front of jurors.

Locke’s decision on this issue will be one of the most important in the trial. Suffolk prosecutors see the tattoos as an implied admission to the crimes. They view the body art as a reminder — like a journal entry or a souvenir — of that summer night in the city’s South End.

But this would be a stark departure from what tattoos are typically used for in criminal trials. Sometimes gang-specific tattoos have been exhibited to show that a defendant has ties to the lawless enterprises.

Other times, tattoos have been shown to jurors as a way to identify a person. If an eyewitness remembers seeing someone with a purple scorpion on their neck, and the defendant has the same, that’s relevant.

However, asking a jury to speculate about what a tattoo means — and then to ask them to speculate again as to why a person decided to get that tattoo — takes things to a level not seen in Bay State courts.

“Unless the claim is that every single human being who gets a gun tattoo is somehow making an admission to a crime, it becomes difficult to argue in this matter that nine months after that Mr. Hernandez intended this as an admission,” said Ronald Sullivan, one of Hernandez’s attorneys.

To complicate matters further — the tattoo artist didn’t say anything about Hernandez’s intentions when he received the body art. He simply said the former tight end picked out what he wanted and where he wanted it.

There is only one person who knows why those tattoos are there, but Hernandez can’t be forced to explain himself to a jury.

Even convicted murderers have constitutional rights.