Courts Are Preying On Rappers and Their Lyrics
Written by SOURCE on January 15, 2021
In Oct. 2017, Lawrence Montague, a Maryland man incarcerated while awaiting trial for murder and gun-related charges, rapped a verse containing the following lyrics over a jail phone to a friend:
“I’ll be playin’ the block bitch
And if you ever play with me
I’ll give you a dream, a couple shots snitch
It’s like hockey pucks the way I dish out this
It’s a .40 when that bitch goin’ hit up shit”
According to court records, Montague’s friend warned him about some of the lyrics, to which Montague replied, “I’m gucci. It’s a rap. Fuck can they do for—about a rap?” Weeks later, the state used the rap to get him convicted of second-degree murder, first-degree assault, use of a firearm in a crime of violence, use of a firearm in the commission of a felony, and carrying a handgun on the person. He was sentenced to 50 years—30 years for the murder in addition to 20 years for use of a firearm (the other charges were “merged,” according to court records).
Montague appealed the admission of the lyrics, but the courts recently denied his motion, effectively opening the door for rap lyrics to be used against defendants in future Maryland cases. Joseph Getty, the presiding judge in the case, reflected afterward that the lyrics “are so akin to the alleged crime that they serve as ‘direct proof’” of Montague’s guilt in the murder of Annapolis man George Forrester. Montague’s lyrics referenced .40 caliber bullets, and two .40 caliber shells were found on the scene. But should a rhyme about a weapon be the smoking gun that costs Montague his freedom?
“It’s a very dangerous precedent,” Montague’s trial lawyer Tyler Mann tells Complex. “It sets the precedent where [courts] can rely on this case. It’s now law. It can now be cited by other courts, where we have these vague lyrics and it can now be said, ‘These are admissions. These are a confession.’ And it becomes harder and harder for the defense to refute that.”
Mann believes the lyrics were “the sole piece of evidence” that convicted Montague. “They had some eye witness, who was an admitted schizophrenic,” he says. “[The witness] was there to buy drugs and ran away from the scene. I would say they didn’t necessarily get a look at my client. They relied on her, but really the sole evidence that they relied on in their closing was this rap.”
Montague is just one of what The Guardian reports could be “thousands” of defendants whose rap lyrics have been used against them by prosecutors. Words have power, and prosecutors all over the country are manipulating that power to convince juries that violent rap lyrics aren’t mere creative license. Now, following Montague’s conviction, seemingly any person who gets charged with a crime in Maryland is subject to have their rhymes scrutinized as perceived “evidence.” Mann says this is the first such case he’s seen in Maryland, but it’s been taking place nationwide for decades.
“It’s a very dangerous precedent. It’s now law. It can now be cited by other courts, where we have these vague lyrics and it can now be said, ‘These are admissions. These are a confession.’” – Tyler Mann
In 1994, California prosecutors introduced written lyrics found in Santa Ana man Francisco Mora’s home to tie him to the city’s Southside F Troops gang in an attempt to put “street gang enhancements” on his sentence for second-degree murder. Case records state the lyrics “include references to Southside gang membership,” but also note that they “could be interpreted as referring to disk-jockeying, a part-time employment of Mora.” Not only should Mora’s lyrics have been protected by the First Amendment, it appears the prosecution wasn’t even positive about what he was referring to in his songs. Nevertheless, Judge William Bedsworth surmised, “Nothing makes these rap lyrics inherently unreliable—at least no more unreliable than rap lyrics in general.” And with that dangerous precedent, the door was open for judges to pathologize all rap as self-incriminatory.
“It happens very frequently,” says lawyer Maryanne Kaishian of Brooklyn Defenders, a Brooklyn-based public defender service which represents nearly 35,000 people each year. “And it can happen in a few different ways. One way is that the lyrics are actually introduced as evidence in criminal cases. Another way is that the lyrics inform prosecutors about their case. They connect people through the groups that create music together and imbue guilt to the entire group.” Kaishian adds, “And it also takes place through police surveillance. We know for a fact that the police watch places where young people can upload their music. They surveil those sites, listen to the music, and note what kind of music they’re making and who is making the music.”
There have been high-profile instances of all the aforementioned tactics being used against established and aspiring rappers. In 2014, San Diego rapper Brandon “Tiny Doo” Duncan’s lyrics were used to prosecute him under California’s proposition 21 law, which allows prosecutors to roll anyone who “promotes, furthers, assists, or benefits from any felonious conduct” into a gang conspiracy. State of California prosecutors argued that the album art for his No Safety mixtape (which featured a gun and bullets), as well as his “ain’t no safety on this pistol I’m holding” lyric implicated him in the conspiracy. Duncan argued, “The studio is my canvas. I’m just painting a picture.” Ultimately, the California superior court agreed with him, dropping the conspiracy charges.
In Aug. 2014, the New Jersey Supreme Court overturned the conviction and 30-year-sentence of Vonte Skinner on the grounds that lyrics used against him weren’t evidence of his culpability in a 2008 attempted murder case. New Jersey Supreme Court Justice Jaynee Lavechia noted, “One cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.”
But Judge Nicholas Gaurafis, who presided over the case of Brooklyn rapper Ra Diggs, saw otherwise. Diggs was convicted on 21 federal charges in 2014, including three murders, racketeering, and drug dealing. The prosecution alleged that Diggs was a leader of a Blood-affiliated set, and along with eyewitness testimony, presented Diggs’ music and music videos as evidence. Gaurafis stated, “The court finds the content of the rap-related videos to be generally relevant in this case where the Government must prove the existence and structure of an alleged criminal enterprise and a pattern of criminal activity committed in furtherance of that enterprise.”
One of the most egregious examples of lyrics being used against an artist is the case of Jamal “Mayhem Mal” Knox, a Pennsylvania man who was convicted in 2013 on two counts of terroristic threats and two counts of witness intimidation for his “Fuck The Police” song. Knox was out on bond in a drug and gun case, but was charged for his lyrics after his two arresting officers said they felt “nervous” because the song mentioned them by name. Knox also rhymed, “Well your shift over at three and I’m gonna fuck up where you sleep,” and, “Let’s kill these cops cuz they don’t do us no goo / Pullin’ your Glock out cause I live in the hood.” Knox argued that his lyrics should be protected by the First Amendment. But both the trial judge and Supreme Court judge Samuel Alito (who oversaw the appeal) disagreed, deeming his lyrics a “true threat” to the officers.
The permissibility of lyrics hinge on Federal Rule 403, which allows the court to exclude evidence if the probative value (the value to proving a defendant’s guilt) is outweighed by a danger of one or more of the following: “Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Prosecutors introducing rap lyrics into cases could be perceived as being unfairly prejudicial against the defendant.
“It often comes down to the specificity of the speech, the imminence of the speech and the resulted act,” explains Alex Spiro, a high-powered attorney who defended Knox. Spiro has served for Jay-Z, Meek Mill, and 21 Savage in his ongoing fight against ICE. He tells Complex, “If somebody says, ‘I want you to attack Mickey right now,’ and then seconds later, minutes later, somebody named Mickey is attacked right then and there, that speech is specific and imminent in its messaging.” But Spiro notes that, “If you were to instead say, ‘I hate everybody named Mickey and if anybody named Mickey comes around here, it’s going to get tricky.’ And then three months later, 10 miles away, there’s a fight and somebody named Mickey gets hurt. [It’s] less specific, less imminent.” That dynamic becomes even muddier when considering that rap lyrics aren’t meant to be taken literally.
“The few times you could ever find any sort of lyrics being used against somebody almost exclusively had to do with rap and exclusively had to do with a Black defendant.” – Tyler Mann
Before the Supreme Court refused to take up Knox’s case in 2019, Spiro filed an Amicus curiae or “friend of the court brief” to the high court, which was supported by rappers Killer Mike, Chance The Rapper, Meek Mill, Yo Gotti, Fat Joe, and 21 Savage. Such briefs are an attempt for unrelated parties to advise the court on how to proceed in high-profile cases. According to Legal-Dictionary.com, these briefs often occur in cases where “social questions or civil liberties” are involved. Everyone referenced in Spiro’s brief agreed that Knox’s song was making a “political statement that no reasonable person familiar with rap music would have interpreted as a true threat of violence.”
Spiro also noted in his brief to the Supreme Court that Knox’s case “provided a good vehicle for resolving issues” related to the prejudicial implications of perceiving rap lyrics as a “true threat.”
“When prosecutors get convictions based on one kind of evidence, prosecutors tend to repeat business,” Spiro says. “If they do something that’s effective at combating crime or getting conviction, they’re likely to repeat it, if nobody calls them out on it. And that’s why it’s important to push back on the system and to ask hard questions and to examine these matters.”
Mann contends, “The few times you could ever find any sort of lyrics being used against somebody almost exclusively had to do with rap and exclusively had to do with a Black defendant.”
It’s no coincidence that this development primarily threatens Black people performing a Black artform. Rap is so often susceptible to racist pathology. Detractors link violent music with gun-toting videos and social media clips to depict Black artists as true-to-life embodiments of their violent lyrics; it’s as if we’re incapable of using our imagination. But those often older, white conservatives don’t consider that artists are merely selling an image that so many younger listeners buy into. Their lyrics reflect violence (which are a consequence of poverty), but they’re fictional portrayals. Jay-Z wisely explained on “Ignorant Shit:”
“Don’t fear no rappers
They’re all weirdos, De Niros in practice
So don’t believe everything your earlobe captures
It’s mostly backwards
Unless it happens to be as accurate as me
And everything said in song, you happen to see
Then, actually, believe half of what you see
None of what you hear, even if it’s spat by me”
Most rap listeners experience music with Jay’s preamble implicitly in their head, recognizing their favorites as akin to artists like Stephen King or Martin Scorsese as creators of fiction. But those unfamiliar with the genre—or prosecutors with nefarious motives—treat the lyrics as self-implicating, thereby criminalizing the entire genre.
In 1996, social psychologist Carrie Fried conducted an experiment where she offered three groups of people (none Black) lyrics to Kingston Trio’s “Bad Man’s Blunder,” a narrative about a police officer being murdered. She told one group that the lyrics were from a country singer, another group that they were from the Kingston Trio, and a third group that they were from a rapper. The results led her to believe that, “When a violent lyrical passage is represented as a rap song, or associated with a Black singer, subjects find the lyrics objectionable, worry about the consequences of such lyrics, and support some form of government regulation.”
And that “regulation” is manifesting through the criminal justice system, via judges who feel similarly as Louisiana’s Bonnie Jackson, who told YoungBoy Never Broke Again during a 2017 probation hearing: “Your genre has a lot to do with the mindset people have. Your genre has normalized violence.” Texas prosecutors looking to convict Tay-K in his 2017 murder case postulated the same idea to their jury, presenting his song “The Race” and the gun-toting cover of his #LivingLikeLarry EP as evidence.
L.A. rapper Drakeo the Ruler recently came home after fighting murder and attempted murder charges in the Dec. 2016 death of L.A. man Davion Gregory. While Drakeo was being interrogated after a raid of his home, Los Angeles sheriff’s department detective Francis Hardiman told him that his music would be “the soundtrack” in any murder trial because “jurors don’t like to see that stuff […] and your rap videos of you talking about shooting.” Prosecutors had audio of a 17-year-old admitting to the murder, but they tried to connect Drakeo by presenting his music as evidence that the boy was acting for Drakeo, purportedly a gang leader. Ultimately, the prosecution was unsuccessful and he was acquitted of the murder charges.
“Once the law starts allowing things like that into evidence, the looser it gets, the more it’s going to be used for improper purposes, and the less checks on the system.” – Alex Spiro
YNW Melly’s lawyers believe that the judge will use lyrics from his “Murder On My Mind” hit in an upcoming double murder trial in Florida. In mid-2019, Jason Roger Williams told XXL, “When you look at the police behavior, when you look at the allegations that somehow rap lyrics are potential evidence or suggestive culpability or real life actions—those similarities are present in this case.”
Lyrics also came into play during Tekashi 6ix9ine’s 2018 RICO trial. But he, a cooperating witness, was afforded the relative privilege of explaining his lyrics to the judge, telling them that “GUMMO” was “a song towards, like, somebody who I didn’t get along with,” He also explained that the “GUMMO” video, depicting dozens of Black people around him wearing red bandanas, was part of a “formula” of promoting “the gang image.”
Kooda B, who was also ensnared in the RICO case on charges of shooting at Chief Keef in 2017, had no such luck. The prosecution used songs he recently released after being given a bond (as a COVID-related compassionate release) to argue that he’s “glorifying gang violence.” In attempts to sentence him to the maximum 57 months, prosecutors told presiding Judge Paul Englemayer that his music “makes it difficult to take him at face value when the defendant claims that he has ‘learn[ed] very important lessons from [his] conduct in this case” and that he “made a foolish choice [that he] won’t make again.’” Apparently, Kooda’s alleged conduct means that his violent rhymes will always be perceived as reality instead of artistry.
“Once you give an inch, it’s not going to be used to prosecute [someone like] me,” Spiro contends. “It’s going to be used to prosecute somebody who can’t afford an attorney, somebody from a different community.”
Before rap, prosecutors used racist, widely believed notions of Black people as dangerous savages to convince juries to find Black defendants guilty. They’re now using rap music to do the same thing. This circumstance isn’t just an indictment of predatory prosecutors, but the juries of everyday Americans buying into notions that Black artists don’t deserve creative license.
The prison industrial complex is systematically warehousing Black and Brown people, and with the Montague case, they used rap as the primary basis for his culpability in a crime. Many people who explore rap rely on their imagination and creative expression, and the criminal justice system is infringing on that right. Those willing to think the most of a mob movie writer while simultaneously believing the worst of a rapper reflect the nonsensical dissonance of racial double standards. Montague’s fate is another example of how systemic oppression breeds unfortunate surroundings and penalizes those trying to navigate them creatively.
As Spiro notes, the more that prosecutors succeed with the use of rap lyrics in court, the more prevalent the strategy will become.
“Once the law starts allowing things like that into evidence, the looser it gets, the more it’s going to be used for improper purposes, and the less checks on the system,” he says. “The more it’s used, one would be concerned, in a way that targets African-Americans.”
