Crime

Killer or Artist?

Prosecutors' use of rap lyrics as evidence is chilling artistic speech.

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When Laz Tha Boy threatens to murder someone, it may seem scary. He proudly mimes shooting handguns at the camera and promises to "leave a…face burgundy." But does the stylized, menacing content of rap videos have a place in a courtroom?

Deandre Mitchell is from Richmond, California. He writes many types of music but found local success in the Northern California area as a gangsta rapper. Laz Tha Boy is his rap persona.

"It's supposed to be freedom of speech. So when I use my freedom of speech and voice my opinion then you all turn around and try and use it against me like this is who I am as a person," Mitchell said in July 2014 from behind a pane of glass at a detention facility in Martinez, California. At the time, he had been confined there for two years.

Three of Mitchell's rap videos ("What You Do It Fo," "It's Real," and "Southside Richmond") were used as evidence against him in 2012, when a grand jury indicted him on two counts of attempted murder. Even though Laz Tha Boy's videos were made years earlier and didn't include references to the shootings at the heart of the indictment, Satish Jallepalli, a prosecutor with the Contra Costa County District Attorney's Office, says they illustrate Mitchell had the mind-set to commit such crimes.

"At the end of the day, yes, a person has a First Amendment right to speak," Jallepalli says, "but when they commit a crime, sometimes what they say will end up being used against them."

In the grand jury proceeding, Jallepalli pointed to violent lyrics like "If I see him I'm gonna murk 'em."

"The term murk [is one] rappers use all of the time," explains Charis Kubrin, an associate professor of criminology, law, and society at the University of California, Irvine. "If it's not murk, it's 'I'm gonna smoke him,' 'I'm going to pop a cap in him.'" Kubrin is a co-author of the paper "Rap on Trial," published in the journal Race and Justice, which details the history and scope of hip-hop in criminal proceedings. She says prosecutors understand the powerful effect such lyrics can have on jurors.

"If you think about who is serving in our jury system in the United States, it's typically older, higher socioeconomic status, typically white. They often don't have the proper context for understanding rap music," Kubrin says.

The tactic dates to the 1990s, but its prevalence has increased lately as prosecutors share how successful it can be. In 2004, Alan Jackson, a former gang prosecutor in Los Angeles, wrote in a guide for the American Prosecutors Research Institute that "through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant's true personality."

John Hamasaki, Mitchell's attorney, says the use of rap videos and lyrics in the Mitchell indictment may have blinded jurors to the lack of physical evidence. In the end, the eyewitness testimony of the intended victim, who said Mitchell was involved in both attempts on his life, fell apart when he admitted his claims were "based on rumors I had heard." In August 2014 the witness signed a statement saying, "I never saw Deandre Mitchell during either of the shootings."

Because Mitchell was facing a life sentence, he accepted a deal on November 5, 2014, pleading no contest to one count of assault with a firearm, and was released. But the possibility that their lyrics could be used against them during criminal proceedings continues to chill aspiring rappers across the United States.

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  1. Killer and artist are not mutually exclusive. If a lyric were the only evidence beinh presented then there may be a point. If it corroborates other evidence then it should be permissable, unless nothing you say can ne used as evidence agsinst you gor reasons of free speech, which seems absurd.

    1. Yeah, that’s really not a mutually exclusive sort of thing.

      Some prosecutors and police do seem to have a hard time figuring out that it is possible to speak in the first person but not in your own voice. Which is stupid. But there is nothing about free speech that says that your speech can be used as evidence against you. Lyrics are pretty weak evidence, but in some contexts it might be relevant.

      1. Prosecutors are also keen on suppressing first-person speech in the voice or “name” of another. In America, this is called criminal impersonation, not parody, unless you overtly state “this is a parody,” or publish in the Onion or appear on one of the late-night television shows where we keep this form of controversial expression neatly confined. My point: “art” and other forms of [removed]speech with academic or intellectual value) are not two separate things. We are facing one general phenomenon of a sneering attitude towards non-material “harms” and cultural manifestations. See the documentation of America’s leading criminal satire case at:

        http://raphaelgolbtrial.wordpress.com/

        1. P.s. somehow, the word “expression,” followed by the opening of a parenthesis, got substituted by ‘removed’ in my posting above. Apparently a glitch in the system.

  2. “In the end, the eyewitness testimony of the intended victim, who said Mitchell was involved in both attempts on his life, fell apart when he admitted his claims were ‘based on rumors I had heard.’ In August 2014 the witness signed a statement saying, ‘I never saw Deandre Mitchell during either of the shootings.'”

    Details, details.

  3. This is not a first amendment issue. This is a rule of evidence issue. We are talking about past conduct used to prove the crime. The general rule has always been past prior conduct is not admissible absent a few exceptions. For a case like this, past conduct is only admissible to show motus operandi. In this context an example would be I write a short story about a a man who engages some elaborate plan to murder his wife and then a few years later my wife dies under oddly similar circumstances. The nexus has to be pretty close.

    I am not seeing it here. So the guy did gangster rap videos. Lots of people do those. That tells me nothing about whether he is guilty here. If this video is admissible and relevant, then Pulp Fiction would be admissible if Quintin Tarantino is ever accused of murder.

    This is a good a no kidding example of racism. The guy is black and perceived to be a part of the gang culture and the prosecution thinks that proves he is guilty. If he were white and a country singer accused of shooting his wife’s lover, they would never introduce some country song he had recorded about killing your wife’s mistress.

    1. It’s a grand jury, though.

      You’re getting the law wrong, John.

      1. I guess that means different rules for evidence? Makes sense.

        The real worry here is that if police and prosecutors can’t understand that people can speak in the first person, but still not be speaking as themselves, there is a lot of room for harassment of innocent people. I seem to recall a few cases of people being charged with making threats solely based on lyrics or fiction that they wrote.

  4. Evidence is relevant if:

    (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

    (b) the fact is of consequence in determining the action.

    Only question here is whether this is so prejudicial that, despite being relevant, it should be excluded.

    But that’s not chilling speech, and there does not on the face of it appear to be a libertarian dog in this fight. There’s no indication here that this evidence was considered dispositive on its own, nor that it was considered to prove beyond a reasonable doubt that he committed a crime. It’s the grand jury stage, so the standard isn’t proof beyond a reasonable doubt.

    I think this may offend because of a misunderstanding of how evidence is used. If I introduce into evidence that the defendant was in City X on the day of the crime, a city with a few million residents and possibly more visitors, it doesn’t seem like that evidence on its own would prove anything. And, of course, it doesn’t. It’s one puzzle piece among thousands. If you take each piece of evidence in isolation, and treat it like it has to prove guilt all on its own or be excluded, then you’ll see very little evidence admitted. I don’t see how that’s a good thing – more evidence, better trials.

    1. more evidence, better trials

      I don’t know if that is obviously true. Seems like there is some reason to exclude some kinds of evidence. In a actual trial, I would hope that song lyrics would be excluded simply on the basis that lyrics are not in general personal statements. Unless, as John suggests, the crime was uncannily similar to what was described in lyrics or something liek that.

    2. That isn’t the only rule. It is called 404b.

      b) Crimes, Wrongs, or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

      (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

      (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

      (B) do so before trial ? or during trial if the court, for good cause, excuses lack of pretrial notice.

      Notes

      This is classic 404b evidence and is inadmissible.

  5. Why don’t we indict that old white male W. Shakespeare? He wrote tons of stuff about murder and mayhem.

    Or Sir Arthur Conan Doyle — he even write about Sherlock Holmes and Dr Watson deliberately and knowingly illegally breaking into people’s houses.

    Fuck government, but with somebody else’s dick, maybe Hillary’s dildo.

    1. There is a difference in writing fiction depicting murder and writing something that you claim at the time is based on your personal experiences as a murderer.

      1. A whole lot of fiction is written from a first-person perspective.

        1. Which in most cases the author does not claim to be the character who they are writing in real life.

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  7. Violence often results when communicating with words fails. Stifling speech is one sure way to increase violence, not to curb it.

    Since he was being held at a facility in my neighborhood, it’s a reminder to me to serve on juries whenever I get the chance. It’s the one place where I can apply common sense and my one vote make all the difference in the world.

    I know from experience that judges lie by omission, so trying to figure out what they’re not telling you can be difficult, but when the “justice system” charges you with three felonies (or you have two already), they can coerce you into making a deal to go to jail for singing. “Three strikes” is unconstitutional (ex post facto), and if that’s so then it’s no law, so it’s easy to justify a “not guilty.”

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