How a Tattoo on Fani Willis or Her Boyfriend — or Both — Could End Their Time Prosecuting Trump

Ahead of an evidentiary hearing, grounds for disqualification could be written in ink and skin.

AP Photo/Brynn Anderson, File
Fulton County District Attorney Fani Willis speaks during an Associated Press interview on Tuesday, December 12, 2023, at Atlanta. AP Photo/Brynn Anderson, File

Could a tattoo, inscribed at Belize, decide whether the district attorney of Georgia’s Fulton County, Fani Willis, and her special prosecutor and boyfriend, Nathan Wade, should be disqualified from the sprawling racketeering case that they have brought against President Trump and 18 others?

The possibility that a tale told in ink and skin could shape one of the most anticipated prosecutions in American history became legible after Judge Scott McAfee rebuffed the request by Ms. Willis and Mr. Wade to cancel an evidentiary hearing set for Thursday. The two prosecutors have confessed to a “personal relationship,” but deny that it predates Mr. Wade’s hiring. 

The lawyer leading the push to disqualify the amorous pair, Ashleigh Merchant, represents one of Mr. Trump’s co-defendants, Michael Roman. She claims that the romance predates Ms. Willis picking Mr. Wade — Ms. Merchant claims he is unqualified — and that the two were motivated by joint pecuniary interest. Judge McAfee allows that it is “possible that the facts alleged by the defendant could result in disqualification.” 

The judge wants to hear evidence on what he calls Ms. Merchant’s “core allegations.” Those include the accusation that the funds Ms. Willis paid Mr. Wade — totaling more than $700,000 — paid for shared vacations. One of those locales, according to Ms. Merchant, was Belize, in March. She writes that Ms. Willis and Mr. Wade “spent $74.15 at a tattoo parlor,” among other expenses. 

Belize, a Central American country that was once a Mayan stronghold and now, as a member of the Commonwealth, swears fealty to King Charles III, is a picturesque but poor locale. It is not known who received the tattoo, or what it said, only that it cost more than $70, which appears to be dearer than a mere consultation in the impoverished polity.

That raises the possibility that Ms. Merchant could request that the tattoo, if it exists, be entered into evidence, if it is probative of when the relationship started between Ms. Willis and Mr. Wade. Presumably, if the text or image referred to their relationship, it would suggest an involvement of some duration. Mr. Wade was hired in November 2021. Ms. Merchant says she has a witness, Terrence Bradley, who can testify that the relationship began before 2021.

The use of tattoos in evidence would not be unprecedented. They have long been used to distinguish gang members at trial — more on that below — with the caveat that they are inadmissible if likely to generate bias or prejudice. It is more difficult to introduce tattoos as evidence of intent or state of mind, because the defendant is likely to claim creative license, as is the artist. Sometimes, a tattoo is just a tattoo.

Tattoos have played a role in another racketeering case that Ms. Willis is prosecuting, against the rapper Jeffrey Williams, known as Young Thug, and others accused of belonging to a record label that doubles as a criminal gang. One alleged member, Trontavious Stephens, was asked on the stand about his tattoos. Ms. Willis’s office is endeavoring to show that YSL Records is a criminal enterprise responsible for a slew of felonies.

Courts have ruled that tattoos are admissible as evidence notwithstanding the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has ruled that the ban on self-incrimination refers to testimony or communication, not physical evidence like  blood, DNA, or fingerprints. Fulton County law bans not only partiality, but also its appearance.  

It is likely, though, that Ms. Willis and Mr. Wade would fight any effort to compel the airing of this hypothetical tattoo, likely by arguing that it is not probative of when their relationship began. Judge McAfee, though, has said that what “remains to be proven is the existence” of a relationship between the two of them — including, possibly, its permanent commemoration at a tattoo parlor in Central America.

The New York Sun

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