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Crimes for rhymes?

Episode Summary

The recording industry and California lawmakers are pushing to put an end to the practice of prosecutors using rap lyrics about crimes as evidence of actual crimes.

Episode Notes

There are dozens if not hundreds of cases involving prosecutors using rap lyrics that are about crimes as evidence of actual crimes, even when there was no other credible evidence. But finally, the recording industry and California lawmakers are pushing to put an end to the practice.

Today, we talk about groundbreaking legislation that could limit how music is used as evidence in criminal court. Read the full transcript here.

Host: Gustavo Arellano

Guests: L.A. Times columnist Erika D. Smith

More reading:

Column: America loves rap, not Black people. Don’t be fooled because this bill protects lyrics

Rapper ‘Tiny Doo’ and college student arrested under controversial gang law get day in court against police

San Diego council approves $1.5M payout to two men jailed under controversial gang law

Episode Transcription

BRANDON DUNCAN: And you wonder why… I live my life do or die… ducking the gunfire, avoiding the chalk lines. How dare you try to mark mines. 

GUSTAVO ARELLANO: Brandon Duncan is better known as the rapper Tiny Doo.

BRANDON: Born and raised in Southeast San Diego, a little on the tougher side. Gangs, you know what I mean? I grew up involved in pretty much all that. It's just regular from where I come from.

GUSTAVO: But instead of losing himself to the streets, Tiny Doo turned his experiences into music.

BRANDON: I started rapping when I was around 17, 18 years old. I love the fact that somebody rapping, writing words on a piece of paper, took people out of a terrible situation and created billion-dollar companies. 

One of my close friends, we kind of had gotten into a little rap beef. I can remember listening to his track and I hit the studio that night and I then I made “Nine Eleven,” it was like battling, instead of us, you know what I mean, putting our hands on each other or going somewhere else with it, we went to the booth, we did what we did in the booth and we left it at that. But you know what I mean, again, that was like the beauty in music and hip-hop. You could take frustrations that happened on the streets and go to the booth instead of going to the streets with it.

GUSTAVO: But then, in 2014, Tiny Doo released a mixtape. 

[Lyrics with profanity and racial slurs]

GUSTAVO: And some of the lyrics in that mixtape got him arrested.

BRANDON: I opened the door and when I opened the door, it was like, you know, pandemonium, “Get down, get down, get down, get down.” Like the police everywhere with AR-15s and just big guns. I'm like what the hell's going on? 

GUSTAVO: Prosecutors said Brandon was linked to gang crimes. And the main evidence that they used against him? His lyrics.

BRANDON: What does my music have, what does my artistry have to do with this?

Why am I being persecuted for my artistry? Why can't I express myself the way any other artist expresses himself? Why can’t I express myself the way Johnny Cash expresses himself? Why? Because I'm a Black man in a Black community. Why can't I talk about, you know, stuff that not only I've seen or just stuff that I've heard about; things that go on, the things that take place every day in urban communities.

GUSTAVO: Tiny Doo served a few months in jail, but the charges were eventually dropped after his case got a lot of media attention. 

But this issue – it’s not over. Rappers like Tiny Doo are still being charged for crimes based on their rhymes.

I'm Gustavo Arellano. You're listening to “The Times,” essential news from the L.A. Times. It's Friday, September 23rd, 2022.

Today, how rappers have long seen their music used against them in criminal trials and how California could soon limit that practice. 

And just a heads-up: There’s bad words in this episode. 

Erika D. Smith is, like myself, a columnist for the Los Angeles Times. So, Erika, concerns about violent rap lyrics are old, almost as old as the genre itself. But what seems to be newer is this phenomenon of prosecutors using lyrics that talk about violence as crimes, and then using those as proof of motivation for alleged crimes that rappers committed.

ERIKA D. SMITH: Yeah. I mean, rap music has been — lyrics-wise — they've been tied up in prosecutions for quite some time. But basically, you know, there is a concern that violent lyrics, people are taking violent lyrics literally. Back in the day, late ’80s, you get NWA’s  “F— the police,” which included lots of lyrics about police and violence against police. 

TAPE: If I know Ice Cube the way you know Ice Cube, then my motto for the police is “Fuck the Police.” 

ERIKA: And people took that literally at the time. 

TAPE: Everybody… Fuck the police…

ERIKA: You know had after that, Snoop Dogg’s rap song “Murder Was the Case.”

TAPE: My eyes are closed…

ERIKA: That was cited or alluded to by prosecutors during his murder trial at that time. But you know this has been going on for a while and now we're in a situation where we have violent lyrics that are being brought up in prosecutions as a literal example of somebody supposedly committing a crime.

GUSTAVO: That’s what’s so infuriating about prosecutors going after rap lyrics. My God, violence and music — they’re inseparable. Rock and roll, bluegrass, corridos, punk — violence, violence, violence. And working-class audiences love crime and violence in their songs. It was true at the founding of this country, and it’s true today. 

ERIKA: Yeah, I mean, you know, you gotta remember the origins of rap, right? I mean, you could talk about, you know, ethnic origins and what island, whatever, but reality is like in the current form, it probably started in New York. And so that, you know, is during the time it's crack- cocaine epidemic, it's coming out of the civil rights movement and people are mad.

So hip-hop, it grew up out of the streets, right? It's people who grew up poor primarily, especially earlier on in the ’80s and the ’90s, and they just talked about what they knew. It was a time of street violence, overpolicing, drugs, you name it. And so people would talk about what they knew and they would rap about it and they would rap about run-ins they had with the police, they would rap about people they saw drug dealing, they would rap about people they saw dying of various different things that happen on the streets. And so people rapped about what they saw and what they knew. I mean, you're not gonna rap about something you've never seen before in your life. And if you've seen a lot of that, and that was where rap started — that violence made it into the lyrics. 

I think for broader American society, for a lot of people, it was like, this is my life and people who listen to it, they would recognize that. Other people, that was so far removed from what they knew and even to this day. And so they look at it as if you're talking about it, you must be doing it as opposed to just being around it.

GUSTAVO: OK, I know the answer to this, but I gotta ask it: Why is this happening to hip-hop artists and not, say, a country music artist? 

ERIKA: Well, I mean, in a word, I guess, racism, it would be the most simplistic answer, but there was a study done over a series of years where they basically put the same lyrics in front of a group of people. One group was told that the lyrics came from a hip-hop song. The other group was told that they came from a country song. And so almost all of the people who thought the lyrics came from a hip-hop song thought that there should be more restrictions, were concerned about the violence. Where those songs that came from what was a country song were not treated in the same way. And so for prosecutors, confronting juries, they have a jury that's going to be more sympathetic once they realize that it's a hip-hop artist, most often a Black man, sometimes a Latino dude, you know, and that tends to lead to more convictions. And doing the reporting for this article, I ended up talking to several experts. But one talked a lot about how these cases have been going on for probably a lot longer than most people realize.

ERIK NIELSON: My research broadly looks at the relationship between Black creative expression in the United States and law enforcement and the law.

ERIKA: One of the experts that I spoke to, a guy named Erik Nielson, who's an associate professor in Virginia. He talked a lot about how he's been involved in these cases for years.

ERIK: I started digging around and found some high-profile cases at first and then decided I wanted to see how pervasive it was. Did that, was shocked. Not only that it was pervasive, but also that nobody was talking about it.

ERIKA: The first case he's testified in was in Ventura County, and that was years ago, involving a small, like an aspiring rapper out of Ojai that had been accused of murder and, whether or not the other evidence, they used his lyrics in that trial. And this professor, Erik Nielson — he testified as an expert witness — is we can't necessarily separate what this person is saying in a song as fact or fiction, but prosecutors wanted to use it as fact and, and presented it to the jury that way. And this person was eventually convicted, but this happens quite a bit throughout the country. 

ERIK: We've seen many cases where there's essentially no credible evidence and prosecutors are still able to secure a conviction based upon rap lyrics.

GUSTAVO: How many cases did Nielson say he's tracked or worked on?

ERIKA: I mean, they found 500 some odd cases going back years. These are artists that are aspiring rappers. You don't have, for the most, platinum-selling rappers. But it was people that were prosecutors that were looking for ways to prosecute a crime.

Erik: I can't say this with absolute conviction and with scientific backing, but we did observe a precipitous sort of increase right around 2007, 2008. So before I had started working on this in earnest. But as we looked at the numbers and the cases, they shot up. And I think that was largely related to the prevalence of social media. 

ERIKA: Somebody makes rap music and they say, I shot 10 people and they have 10 bodies. They're like: You, we have other evidence, maybe not, but we're like, you are the person, you said this in a song, therefore we're going to prosecute you for these crimes that you said you committed in a rap on, on Instagram or I guess pre-Instagram, but on MySpace or whatever else was around at that time.

ERIK: We've also seen the proliferation of these gang units and, you know, a lot of times these are police who spend a significant amount of time sitting at their desk watching YouTube and looking at these young kids’ videos. Obviously social media has been great for aspiring artists in some ways, barriers to entry, you can reach an audience theoretically of, you know, hundreds of millions of people, but it also makes it really easy for the police to misinterpret. 

GUSTAVO: What are some of the bigger cases that Nielson has worked on?

ERIKA: Yeah. So I think probably the biggest, which people in Los Angeles and California would probably remember pretty well, is Drakeo the Ruler, who's now unfortunately, uh, deceased. He was killed late last year. But he, for years before that, was caught up in a case where prosecutors here in Los Angeles had insisted that he was part of a criminal organization and that his lyrics were evidence of crime. And, you know, this is a case that he went back and forth and eventually it took a defense attorney from San Francisco to kind of come down and work this case. And basically put forth a plea deal that he was able to get out and for time served. But basically the case was never really resolved where it was clear that he was innocent based on his lyrics. It was always kind of muddled, but I think that's probably one of the more higher profile ones. But there's some others around the country, some smaller aspiring rappers, several in Los Angeles, several in California.

GUSTAVO: So what are these defense attorneys and people like Nielson saying when it comes to these hip-hop artists writing these lyrics that do talk about violence?

ERIKA: I mean, I think with Erik — who is the expert on this, has testified in several different trials and has given consulting for several others and also written a book — I mean, he says basically what's obvious is that, you know, rap lyrics are expressions of art and that they cannot necessarily be taken literally. And you know, sometimes before the juries, that actually works, sometimes it doesn't, but it's almost according to him, he says, it's almost sure not to work. If you don't have somebody there during the trial saying, we're not gonna take these lyrics seriously. A lot of times juries will actually go ahead and convict.

ERIK: The vast majority, um, prosecutors are introducing lyrics as evidence of some underlying crime. So they're charged in a stabbing and then they'll find lyrics and maybe they mention stabbing. And so that's one and one equals two. Now can I say for sure that the rap lyrics were the only thing that caused these convictions to occur? No, but patterns emerge. And when you see case after case that's weak and should never result in, you know, in a guilty verdict still resulting in that verdict, it's hard not to imagine that the lyrics exerted a significant influence on the jury. 

ERIKA: You know, that's one of the things that he says. I mean, the defense is along the lines of something similar, trying to prove why we're taking these lyrics into consideration in court. What is the basis of it? Is it relevant? That sort of thing.

ERIK: I think the narrative often within the media, certainly within law enforcement, is that hip-hop, you know, rap music, promotes, perpetuates, causes violence. The real story, the narrative of hip-hop from its early beginnings all the way to today, is that it's done far more good for communities than harm, especially communities that, where there aren't many opportunities, you know, for upward mobility. 

GUSTAVO: We'll have more after the break.

GUSTAVO: So Erika, if defense attorneys are saying that rap is freedom of expression in court, then what are prosecutors trying to argue when they use lyrics as evidence for their cases?

ERIKA: Well, they're picking out – cherry picking – specific lyrics that people may have said. Um, you know, I mentioned NWA’s “F— the Police,” you know Snoop's “Murder Was the Case.” I mean, they're looking, they’re combing through, best I can tell, and best, you know, Erik and some of the other experts that have studied this field can tell, they're combing through songs, and they're combing through YouTube videos, and they're combing through even social media posts for quote-unquote evidence of crimes committed, but oftentimes it's evidence of gang affiliation. So, you know, we have gang enhancement charges. And so people who might have been sent away for X number of years, so for supposedly gun possession or something else, if there's a gang enhancement slapped on top of it, then it's going to be a lot longer. And so a lot of times they'll say, this label you're a part of, it's actually evidence of a criminal organization. And you are a part of a gang. Therefore we're going to not only file these charges against you, you're gonna do it with gang enhancements, so you spend a lot more time behind bars.

GUSTAVO: I still can't believe over 500 cases that Nielson has tracked. So how has the recording industry responded to all of this?

ERIKA: You know, until recently, the record industry hasn't said a whole lot. They've let it play out for the most part. It's been mostly aspiring rappers, people who aren't household names, but in the last couple of years, we've seen more cases involving rappers that people follow, people who sell plenty of records, people who've won Grammys, been nominated for Grammys. Probably the most high-profile case that's going on right now is involving two rappers out of Georgia, Young Thug and Gunna, who have been sitting in jail for several months now, charged with the criminal racketeering statute in the state of Georgia. It's a sprawling indictment with all sorts of charges on it. But basically the bottom line is that prosecutors allege that their record label is actually a crime organization, and that Young Thug is the founder of said crime organization. And they've used his lyrics to prove it, along with music videos with like logos and the word “slime,” which is in reference to a street gang. And so it's all kind of conflated. The trial's not supposed to start until next year. They were recently denied bond, again. So they're going to be sitting in jail until this trial. So the record industry in this past year has pushed for more legislation in response to this. 

GUSTAVO: So once it hits their bottom line, that's when the record industry starts to care. But what exactly are they doing, though, to try to fight this issue?

ERIKA: Well, I mean, they are lobbying, frankly, lawmakers and talking about this. It's taken Erik Nielson, the expert I interviewed, I mean it took him a little bit by surprise that the industry got so involved. But others who are not necessarily record industry executives, but high up, folks like Jay-Z and other people have also gotten involved as well. And so we've seen a push for legislation at the federal level, and at the level of multiple states.

GUSTAVO: More after the break.

GUSTAVO: So, Erika, you wrote about all of this in a column recently, and specifically you focused on California, where there's a bill in the state capital that is supporting stopping the prosecution of folks just based on their lyrics. What's the bill and who's behind it? 

ERIKA: So the bill's Assembly Bill 2799. It was, um, authored by a Los Angeles Democrat, member of the Assembly, Reggie Jones-Sawyer.

REGGIE JONES-SAWYER: Our next speaker is a fierce leader in the fight for criminal justice of reform in the state Assembly. Reggie Byron Jones-Sawyer Sr. Hello, Los Angeles.

ERIKA: He introduced the bill earlier this year after having some conversations with some record industry executives about this topic.

REGGIE: I'm Reggie Jones-Sawyer. I represent South L.A.

ERIKA: He was not aware, the fact that so many people had been prosecuted for their lyrics. I mean, he kind of, from what he told me, he is aware sort of, but not to the level and the extent that it happened. So he introduced this bill. It passed. And it's now sitting on Gov. Gavin Newsom's desk.

GUSTAVO: Yeah. You hear about the big names, but when you hear again, just that so many folks have done it. That's, I'm sure, that really strikes people.

ERIKA: Yeah. And he particularly, as a Black man, was very unnerved by the fact that so many Black and Latino men seemed to be caught up in this process.

GUSTAVO: Has Newsom addressed it at all? Like the issue?

ERIKA: No, as far as I know, I mean, it's unknown whether he's gonna sign it. Nobody really wants to speculate on what the governor's gonna do. I would hope that he signs it. That was my push in my column. So hopefully he will. 

GUSTAVO: What happens if Newsom signs? Like how does the law then change?

ERIKA: So right now it's kind of a free-for-all for prosecutors. They can kind of use them whenever they want to, these lyrics. But if this bill passes, prosecutors would have to show in a pretrial hearing away from the jury, how relevant they are to the case. And so it would be up to a judge to admit those lyrics.

GUSTAVO: Is California the only state that has a bill like this right now, so far in the legislative process? 

ERIKA: We are the only state that's actually gotten it through the legislature to the governor. The state of New York has introduced a bill as well, which has stalled at the moment. It passed one house of legislature, did not pass a second house. Unclear whether it's going to come back. I think there's definitely some momentum to push it to come back. But right now we are the state that's the furthest ahead. Also, there is a bill in Congress that, as many things in Congress do, stalled. So right now, California is kind of out on its own, which is, I guess, how we usually like it.

GUSTAVO: Finally, Erika, California's always, it's almost on this cliche show, we're always leading the way for the rest of the United States. What would be the symbolism if California passed this, or what would be sort of the way forward for the rest of the country?

ERIKA: Well, what it would mean for the rest of the country, I think, is hopefully we'd be setting an example — which we always try to do. But I think that also, there's just this East Coast-West Coast rivalry about who's the home of hip-hop, New York or L.A. And you know, I think it does mean something that we are the first to kind of really protect hip-hop artists, rappers in this way. But, you know, I don't want us to be the only. I think obviously we see what's happening in Georgia. We see plenty of cases in New York. We should not be the only state looking at lyrics in this way, and not just lyrics, but all creative works as well. 

So I'm hopeful that what we do here sets an example. This is the kind of East Coast-West Coast rap rivalry we do need. 

GUSTAVO: ATL step up.

ERIKA: (Laughs.)

GUSTAVO: Erika. Thank you so much for this conversation.

ERIKA: Thanks for having me on, Gustavo. 

GUSTAVO: And as for Tiny Doo, by the way, he says even though his rap lyrics got him arrested, he’s not going to give up on hip-hop anytime soon. 

BRANDON: I love hip-hop. From Jay-Z sitting at his house, working on a craft. Now he has a billion-dollar company that he runs. It's amazing. And it just, let’s me like, I gotta keep working,  when I thought about giving up, now I'm just like, “nah, I got work to do.” Whether it’s me in front of the camera or somebody else, with me just helping somebody else get in front of the camera. I just, I wanna be a part of hip-hop. I wanna be a part of everything that it has to offer, from the clothing to the movies to the music. I wanna be a part of it, period. 

GUSTAVO: And that's it for this episode of “The Times,” essential news from the L.A. Times. Ashlea Brown and Shannon Lin were the jefas on this episode. And Mike Heflin mixed and mastered it. 

Our show is produced by Shannon Lin, Denise Guerra, Kasia Broussalian, David Toledo and Ashlea Brown. Our editorial assistant is Madalyn Amato. Our engineers are Mario Diaz, Mark Mieto and Mike Heflin. Our editor is Kinsee Morlan. Our executive producers are Jazmín Aguilerra, Shani Hilton and Heba Elobarny. And our theme music is by Andrew Eapen.

Like what you're listening to? Then make sure to follow “The Times” on whatever platform you use. I’m Gustavo Arellano. We'll be back Monday with all the news and desmadre. Gracias.