OLYMPIA – In a case that prompted analogies to the mark of Zorro, Washington’s Supreme Court on Thursday ruled that graffiti writers’ “tags” – signed graffiti nicknames – can be used as evidence against them in court.
“There is a great deal of evidence in this case showing that tags are not mere words; they are akin to signatures,” wrote Chief Justice Gerry Alexander.
An attorney for the two convicted vandals at the center of the case called the ruling a dangerous precedent that increases the possibility that criminals could dodge prosecution by “signing” someone else’s tag at a crime scene.
“Given the court’s ruling … there’s a much higher likelihood that an innocent person will be convicted,” Seattle attorney Chris Gibson said.
The high court unanimously upheld the convictions of Lawrence Foxhoven and Anthony Sanderson, both of whom were convicted on several counts of malicious mischief for using acid to etch graffiti on the windows of several Bellingham businesses in 2001.
The graffiti included the tags “Series” and “Hymn.”
Police seized two photos from Foxhoven’s home showing graffiti marked with “Series.” At Sanderson’s home, they seized drawings of the “Hymn” tag, photos of graffiti marked with the word, and photos of Sanderson painting it.
Both suspects wanted that evidence excluded.
Under a court’s evidentiary rules, a prosecutor generally can’t bring up evidence of past crimes – or even bad behavior – as a way of showing a person’s criminal character. Those past acts may be used, however, to try to show a plan, motive or identity. It’s up to the judge to decide what’s relevant.
Foxhoven and Sanderson argued that their earlier tagging wasn’t similar to the Bellingham window damage they were charged with.
“Indeed, the evidence depicting prior by petitioners involved different mediums on a wide variety of buildings, vehicles and papers” in various styles, Alexander wrote. Virtually the only consistency, he noted, was the use of the tags “Hymn” and “Series.”
But police experts in the case said that it’s unusual for a graffiti vandal to sign someone else’s tag to a work.
” … In sum, if a tag like the ‘mark of Zorro’ is left at the crime scene and there is evidence that the person charged with the crime made that mark at other crime scenes,” Alexander wrote, “it is admissible.”
That’s a broad standard, Gibson said, raising the hypothetical situation of a murderer who happens to scrawl “series” at the scene of a killing.
Because of that word, he said, “Conceivably, my client could be charged.”
Yes, differences in writing style or other aspects of a tag would affect how much weight a court gives that evidence, Gibson said.
“But then you’re left to whatever juries want to do,” he said. “And I think juries tend to believe – even if they’re not supposed to – that if a person’s accused, they probably did something.”
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