.Rap’s Poetic License: Revoked

In 2004, the late Andre Hicks, better known as the revered Vallejo rapper Mac Dre, issued Ronald Dregan: Dreganomics. The album cover bore a faux-campaign poster, replete with a few clichés of political boosterism: Dregan’s wide grin, a thumbs-up, and a billowing American flag. On the title track, Dre, in character, caricatured Ronald Reagan’s hollow rhetoric and added a cheeky hook: Follow me now, let me lead the way/If you gonna believe in something, believe in Dre … /Royal, spoiled, it’s the American way.

Deandre Mitchell, an emcee who grew up in Richmond, admired Mac Dre’s satirical bent, how the rapper adjusted voice and persona to suit lyrical goals, whether that was ridiculing neoliberals, stylizing himself as a chic mafioso, or just whimsically celebrating drugs. When Mitchell started rapping in the early 2000s, he similarly adopted different lyrical voices. He had his own presidential spinoff — Lazadore Roosevelt. His repertoire also included Pimp Snuffy Nose, and a generously auto-tuned lothario, Bobby Lazentino. His go-to rap moniker, however, is Laz Tha Boy.

In a recent interview, Mitchell described his initial forays into the rap game with fervor and pride for a burgeoning creative community. “There was me, the A Team, The Block Boys, Nio Tha Gift,” he remembered. “That was the new generation — and everyone around us got a job. We needed a cameraman, someone to record, make beats, do promotion, and hand out CDs.

“The Bay Area in general is known for independent hustle,” Mitchell continued. “That’s what we did.”

People responded more to Laz Tha Boy — the grinning gangsta rapper sporting gear from his own clothing line, AOB University — than to Mitchell’s other personas. Spanning a career that continues to this day — he recently collaborated with standout HBK Gang emcees Iamsu! and Kool John — Laz Tha Boy’s music videos garnered hundreds of thousands of views.

Trouble is, a lot of those clicks came from Richmond cops and Contra Costa County prosecutors, who’ve cited his music videos in multiple criminal trials. In fact, law enforcement officials made Mitchell’s recorded in-character utterances their evidentiary cornerstones in a grand jury proceeding for attempted murder, punitively enhanced for alleged gang membership, brought against Mitchell and two co-defendants in 2012.

In the grand jury proceeding, the prosecutor painstakingly avoided any depiction of Mitchell and his community in terms of creativity, art, or entertainment. Instead, prosecutor Satish Jallepalli elicited testimony from Richmond Police Department gang detectives that depicted Mitchell and his collaborators not as a creative community, but as a criminal enterprise; Mitchell’s lyrics not as figurative language, but as evidence of motive and a lack of moral character; and his music videos not as promotional tools mimicking mainstream genre convention, but as unambiguous proof of membership in a gang called Deep C.

According to a transcript of the grand jury proceedings, Jallepalli, a deputy district attorney for Contra Costa County, introduced five music videos as evidence in the case. He called them “gang videos.” Jallepalli’s expert witnesses — those who took the stand to expound on hip-hop — were Richmond police gang detectives.

Jallepalli questioned Richmond Police Detective John Lopez about the meaning of dozens of phrases, regardless of their connection to the alleged crimes. Lopez claimed that “to ‘ride’ is to shoot. … If you’re a rider, you’re a shooter.” At another point, Jallepalli asked, “What does [‘do it for the block’] mean?” Lopez responded, “Doing it for your — in essence, Deep C, whether it be crimes and/or shootings.”

At the end of one music video, the phrase, “Lean in peace Robby Ross” appears on the screen. The police detective testified that the deceased Ross was a gang member, claiming that the common practice in rap of memorializing a dead friend amounted to a confession of gang activity.

The grand jury indicted Mitchell on all counts.

John Hamasaki, Mitchell’s attorney, filed to dismiss the indictment, arguing that a litany of procedural gaffes infringed on his client’s right to a fair trial. The victim and key witness identified Mitchell only after changing his account of the shootings several times, Hamasaki noted, and witnesses with contrary accounts of the alleged crimes were not sought for testimony. Crucially, Hamasaki argued that the use of Mitchell’s music as evidence was unfairly prejudicial.

Hip-hop vernacular is complicated. It evolves swiftly, resists indexation, and its proponents prize lexical innovation, all of which makes it susceptible to misinterpretation, accidental or otherwise. Rap, an expressive form rooted partly in competitions tellingly called “battles,” often intimates violence, intimidation, and boisterous narratives of unlawful activity, but in Mitchell’s case and others brought throughout the Bay Area in recent years, cops and prosecutors’ use of lyrics and music videos has appeared carefully calibrated to vilify defendants and preclude any consideration of rap as art.

As Hamasaki put it, “Prosecutors go, ‘Oh, he’s rapping about guns and drugs so he must be selling drugs and shooting people.’

“In Deandre Mitchell’s music,” Hamasaki continued, “there’s a lot of talk about where you’re from. Representing your neighborhood is one of the fundamentals of hip-hop, but the prosecutors call it gang turf. Well, that’s where he was raised. That’s where he came up, and with the sort of poverty in areas where hip-hop is produced, your neighborhood is all you have.”

Erik Nielson, a professor at the University of Richmond in Richmond, Virginia who has extensively researched the use of rap evidence in criminal proceedings and has appeared in dozens of cases, including capital trials, as an expert witness to counter the damning interpretations of rap lyrics offered principally by cops, said prosecutors are increasingly turning to rap lyrics and videos to put young Black men behind bars. “Now that rap is mainstream, you’d think that this would be the point when these misunderstandings would stop,” he said. “And yet we’re seeing it more and more often.”

And, counterintuitively, Nielson observed that the increased use of rap as evidence in criminal trials is occurring at a time when rap permeates pop culture. “People sometimes feel surrounded in a way that’s threatening, which they didn’t when [rap] was on the margins,” he said. “The attack on rap is part of a larger cultural response to race relations in the United States. Rap becomes a scapegoat, a proxy for people’s deeper anxieties about young men of color.”

Wary of dealing with the more irrelevant and prejudicial evidence in a trial setting with a potentially conservative Contra Costa County jury, Deandre Mitchell pleaded to a lesser charge: assault with a firearm. Mitchell, who maintains his innocence to this day, said “that was the hardest decision of my life.” The father of two served more than two years in prison.

“The expert in that case,” Hamasaki recalled, “was qualified to give expert testimony on gangs, gang members, crimes, what kind of crimes benefit gangs — but he’s not an expert on music.”

Indeed, the testimony Jallepalli elicited from Detective Lopez about Mitchell’s music was fraught with ahistorical statements masquerading as objective truth. “What Deep C and other rap groups or other maybe gangs would do is they’ll rap about their experiences and what they have actually done,” Lopez testified. “To not get caught, they keep certain parts vague.”

But in the more than 150 pages of “expert testimony” in Mitchell’s grand jury proceedings, there is no acknowledgment of the figurative language or poetic devices that Laz Tha Boy employs — which include neologism, hyperbole, parody, portmanteau, and allusion — presumably because the prosecution wished to avoid signaling to jurors that Mitchell deals in creative invention. Likewise, the inadequacy of semantically analyzing a lyrical form in which content and meaning hinges upon delivery and vocal style wasn’t brought up, nor were Mitchell’s array of past personas. Put simply, Jallepalli and Lopez ignored the distinction between author and narrator that’s extended to other genres and forms of expression.

Lopez’s conflation of rappers with gangs and verses with confession is indicative of the criminal justice system’s lowly regard for rap, which is predominantly produced by young men of color. A number of high-profile case have brought awareness to the trend, notably the recent case of the rapper Bobby Shmurda in New York, but broadly, prosecutors nationwide regularly use rap as evidence against amateur artists who lack the name recognition and financial wherewithal needed to muster effective defenses.

“We need more studies, more scholarship in that area,” Hamasaki said of rap music and videos. “In court, there’s an analysis of whether evidence is more prejudicial than probative. Considering what studies there are about the effect of hip-hop on middle-class, predominantly white suburban jurors — it’s highly prejudicial.”

Some courts have begun to tighten admissibility standards for rap lyrics. The move validates the view of many academics and legal professionals who consider prosecutors’ use of rap evidence as a cynical ploy to exploit latent bias against the urban young men of color who take to the form. The worry is that rap will endure a chilling effect, wherein lyricists are compelled to self-censor given the genre’s particular burden.

In the East Bay, the recent experiences of Mitchell and other rappers are part of law enforcement tradition: The lyrics of Mac Dre also have been taken as fact by law enforcement. Dre’s 1992 arrest for conspiracy to commit robbery was widely viewed as retaliation for the song “Punk Police,” in which he raps about the Vallejo Police Department: You labeled us a ruthless g-a-n-g/But the biggest gangsters are the V-P-D.

“Mac Dre was talking about police brutality and harassment in that song and 25 years later it’s still a concern,” said Eric Arnold, a journalist and former Express staffer who covered Dre and his Romper Room peers at the time. “There’s definitely an element of sensationalism, on the prosecutorial side, when you have a rapper and you’re using the fact that they’re entertainers with followings.” Mitchell is confident that Laz Tha Boy was similarly targeted for his standing in the community. “I’m one of the only people in Richmond that brings people together,” he said. “That’s why they wanted me down, because of my voice.”

Satish Jallepalli, a fifteen-year prosecutor with the Contra Costa County District Attorney’s Office who has been working in the DA’s gang unit for the last three years, said that social media, including YouTube videos, figures into the investigation or evidence in most of his cases. He said he typically cites rap lyrics and music videos to link defendants with gangs in order to add extra prison time to felony convictions, a practice referred to as “gang enhancement.”

The standard for securing gang enhancements in California is very low; the penal code defines “criminal street gang” vaguely as any group of three or more individuals with a common name or sign who engage in felony activities. A defendant need not be a “known gang member” (an often misleading phrase in its own right, since many described by the authorities as such only accept the lifelong tag as part of a plea bargain) for prosecutors to pursue gang enhancements. Committing a felony for the benefit of, at the direction of, or in cooperation with gang members suffices.

The recent case of San Diegan Brandon Duncan, who raps as Tiny Doo, underscored how eager prosecutors are to muzzle speech with gang enhancements. Duncan stood accused of nine counts of “criminal street gang conspiracy,” which carried a potential life sentence, after he was arrested in a gang sweep. Duncan wasn’t accused of the varied felonies brought against his associates. Rather, prosecutors argued that he benefitted from the exploits of gang members because he sold CDs that chronicled their crimes. As First Amendment attorney Geoffrey King noted in his piece on Duncan for The Guardian newspaper late last year, the rationale could theoretically subject documentarians to gang charges since, in the prosecutors’ view, they benefit from the organized crimes of their outlaw subjects. In March, an appellate court dismissed Duncan’s charges.

One private attorney I spoke to, Joseph Tully, called gang enhancements “draconian,” noting that many police scandals — for example, when six San Francisco Police Department officers stole from low-income residents and sold seized drugs in 2011 — could fall under the state’s definition of gang activity. Of course, gang enhancements aren’t applied so generously.

Regardless of the underlying problems associated with gang charges, Jallepalli’s assertion that he limits the use of music evidence to pursuing gang enhancements isn’t supported by the way he exhibits such evidence in court. Moreover, seeking gang enhancements and ignoring the gap between lyrics and reality are part of the same project. “We’re explaining that this gang benefits from committing acts of violence,” Jallepalli said. “So, the fact that the defendant, in that case, Mr. Mitchell, was referencing that type of conduct was relevant to his intent and his motives.”

In at least one of Jallepalli’s cases, the authorities’ zeal to project criminal reality upon creative speech moved them to invent it.

Jallepalli tried the case of Desean Haywood, who was found by Richmond police suffering from a gunshot wound near the site of a home-invasion robbery that occurred in 2011. Jallepalli pursued gang enhancements for the underlying felony charges. Among others, Jallepalli used Laz Tha Boy’s “What U Do It Fo” music video, which includes Haywood not as a performer but as one of many bystanders nodding their heads to the beat, as evidence supporting the gang charges. Late last year, the ABA Journal reported that the music video was also shown to jurors in Mitchell’s case.

In an exchange much like the one between Jallepalli and Detective Lopez, the grand jury transcript revealed that Richmond gang Detective Matt Anderson offered several bogus insights. ‘”We’re all with the shit’ would mean they’re all down to … promote the Deep C criminal street gang,” Anderson claimed. Anderson’s views on music video fashion were similarly shallow: “Hooded sweatshirts are fairly common to wear if you’re gonna commit a shooting.”

For “Southside Richmond,” another Laz Tha Boy video featuring the rappers Tay-Way and Young-Bo, Jallepalli handed out transcripts of the lyrics to the grand jurors. He stated that the transcripts were guides, not to be admitted into evidence. Jallepalli paused the video and asked Anderson to explain the reference “Erv” in a line transcribed on the guides — a copy of which was obtained by the Express — given to jurors. The guide read: Erv, like you in the game, and you niggas running backs. Anderson stated unequivocally that the line referenced Ervin Coley, who he said was a rival gang member murdered in 2011 (media coverage from the time indicated that Coley, who maintained a neighborhood garden, was merely a pedestrian in a targeted neighborhood.)

Only, the transcription was incorrect. In the song, Young-Bo raps, Urlacher in the game/man you niggas running back. In the music video, Young-Bo runs backward. Under cross-examination, Haywood’s deputy public defender, Sung Ae Choi, posited that the line referenced the famous Chicago Bears football player Brian Urlacher, not a murdered rival gang member. Anderson eventually conceded, “I don’t know if that was actually said in the song.”

Such use of “evidence” could be problematic under the California Rules of Professional Conduct, which state that an attorney, “[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement or fact or law,” Rule 5-200(B).

Jallepalli told me that he regularly transcribes lyrics, either personally or through an assistant, whose work he then checks for accuracy. He said that he did not transcribe “Southside Richmond,” but he wasn’t sure who did. The music video was also used as evidence in Mitchell’s case.

“There are basically a generic set of videos that are being discovered in gang enhancement cases,” Choi said in an interview, noting that some of the video evidence in Haywood’s case predated the alleged offenses by three to four years.

Choi, who has defended multiple cases that involved gang enhancements, said, “I find this use of gang evidence is incredibly problematic. The very definition of overly prejudicial evidence is that it’s emotionally inflaming with very little rational, specific information.”

Hamasaki echoed her sentiments. “What happened is that prosecutors found that it’s effective to introduce videos of predominantly young Black males talking about violence and street life in a way that can be viewed as intimidating,” he said. “It tends to have a prejudicial effect on jurors that is not relevant to the case at hand.”

Jallepalli countered that critics underestimate the judgment of jurors. “The myth of this issue is that jurors are provincial and unsophisticated,” he said.

His argument, however, was undermined by an example that he cited to support it, because the example involved a juror who refuted the supposed expertise of Jallepalli’s witness. Jallepalli said that in one recent case, another gang detective “referenced certain passages that were commenting on violence, commenting on the use of firearms — this was a murder with gang enhancements—and one of the jurors wrote a note to the effect of, ‘Some of these things are quotes from rap artists, not things he originally wrote.'” Neither Jallepalli nor his expert witness was aware that the passage included quotations.

Erik Nielson, the University of Richmond professor who is an expert on the use of rap evidence in criminal proceedings, recently co-published, with Charis Kubrin, a professor at UC Irvine, Rap on Trial, a scholarly paper that’s served as the basis for their opinion pieces in The New York Times, the Los Angeles Times, the Washington Post, and USA Today, among other outlets.

“Our work has become all-consuming,” Nielson said in an interview. “The deeper we dig, the more horrified we are by the extent of it.

“We see horrible experts,” he added, referring to police detectives who claim to understand rap, “people who show fundamental misunderstandings of the genre.”

Examples of rap being used as evidence are abundant in Bay Area criminal trials dating back to the 1990s. There are no records kept of how frequently rap is admitted into evidence, and it’s difficult to track due to the various stages and types of trial proceedings, records of which often remain sealed. But Nielson and Kubrin have amassed documentation of hundreds of examples as part of a broader campaign aimed at bringing attention to — and curbing — the practice.

In Rap on Trial, the academics map rap, which they distinguish as one component of hip-hop culture, from its origins through today, illustrating its empowering role for historically underserved communities, along with the attendant establishment efforts to stamp it out, namely through penalizing expression in criminal proceedings.

Early in his research, Nielson observed that a disproportionate number of the criminal trials involving rap evidence came from California, which he attributed to the state’s aggressive gang statutes. “In the 1990s,” he said, “you had law enforcement disrupting concerts, so much that you saw labels self-censoring from within, holding artists back or requiring artists to change their lyrics.”

Indeed, live rap shows have been particularly embattled in Oakland, where the genre was formally banned from clubs for a year in 1989. Today, the Oakland Police Department regularly inspects fliers for hip-hop shows, stepping in to compel cancellations if they deem a performer problem-prone. And earlier this month, following a fatal late-night shooting in downtown, Damon Gallagher, the then-co-owner of a nearby pizzeria, appeared to speak for those who harbor prejudice against the genre when he publicly blamed the hip-hop-oriented club Vinyl for inviting violence, despite his ignorance of the tragedy’s details.

As Nielson and Kubrin write in Rap on Trial and elsewhere, hip-hop culture was always highly political, a means for the dispossessed to reclaim urban space, which still colors the neighborhood-centric lyrics of artists such as Laz Tha Boy. Rap lyricism became especially characterized by politics in the late 1980s and early 1990s. Afro-futurism themes appeared, with groups often stylizing themselves as didactic disciples of a radical Black tradition. In Oakland, Boots Riley and The Coup espoused a Marxist critique of class and race.

Rap on Trial emphasizes that, despite the public’s assumptions about violence and rap cohabitating, hip-hop culture has more often served as an alternative to destructive avenues, a means of transmuting aggression into ritualized, combative expression. Nevertheless, it was in the early-Nineties, when explicitly political rap began giving way to gangsta themes, that prosecutors’ efforts to criminalize hip-hop tropes began in earnest.

In 1994, Anerae Brown, who raps as X-Raided, went on trial for participating in a Sacramento home-invasion robbery that left a woman dead. The prosecutor, Pete Harned, played jurors selections of X-Raided’s music, arguing in court that they amounted to premeditation. Brown was sentenced to 31-years-to-life. In prison, he met Shawn Thomas, better known as the storied Sacramento rapper C-Bo, architect behind The Jacka’s Pittsburg outfit Mob Figaz. When Thomas was released on parole, he agreed not to record music that promoted gang lifestyles or criticized cops. But then he issued “Deadly Game” in 1998, which discussed killing cops to avoid a third-felony, referencing the controversial three-strikes law. The song, which was actually written by Brown in prison, earned Thomas an arrest for parole violation and charges that were only dropped after protest and ACLU intervention.

In 1999, Raymond Lamont Scott went on trial for shooting an Oakland police officer. The judge in the case allowed the prosecutor to admit lyrics written by the defendant more than a year before the alleged crime. The San Francisco Chronicle quoted Alameda County prosecutor William Tingle saying, “The poem will show Mr. Scott’s attitude about killing — the glorification of it, the joy it.”

That sort of spin influenced the trial of Joseph Blacknell III, who was accused in 2012 of the 2009 killing of a rival gang member in Richmond. The UC Berkeley School of Journalism news website Richmond Confidential reported that Contra Costa County Deputy District Attorney Derek Butts cited lyrics that Blacknell jotted down while in custody, which “he said indicated that Blacknell was a violent enforcer within his gang.”

Nielson and Kubrin’s studies show that rap is nowadays penalized in court more aggressively than ever, which initially appears to be at odds with its contemporary pop culture hegemony. Intuitively, rap’s high profile — not to mention the new superstar paradigm exemplified by Kanye West and Jay Z — would suggest wider acceptance and understanding, but in court, the opposite holds starkly true.

As Nielson put it, “Prosecutors started to realize it’s effective, so it became almost a formal strategy.” In Rap on Trial, Nielson and Kubrin cite a 2004 training manual produced by the National District Attorneys Association that codified the use of lyrics for going after defendants: “Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant’s true personality.”

As much as the judiciary entertains prosecutors’ aggressive use of rap evidence, activists and legal professionals are also looking to higher courts for rulings that limit and condemn the tactic. Nielson hopes that prominent decisions will reinforce what’s actually an old legal standard: Distinguishing between probative, relevant evidence and evidence that’s prejudicial, or liable to undermine a defendant’s right to fair trial by appealing to jurors’ emotions with tangential details. That’s supposed to occur in every criminal proceeding, but judges regularly capitulate to prosecutors who wish to mislead jurors with prejudicial rap evidence. Nielson hopes for prominent rulings to compel lower courts to abide by extant standards of due process.

That’s what eventually happened in the case of Jamie Thomas, an Oakland resident who fatally shot his neighbor, Sam Navarro, in 2007. The shooting immediately followed an altercation in which Navarro’s friend, Ignacio Ortiz, assaulted Thomas. Initially, Ortiz lied to the police about what precipitated the shooting, only to correct himself on the stand. After the shooting, Oakland police recovered handwritten lyrics — a mostly unintelligible verse that included references to gunplay — from Thomas’ apartment.

One charge filed against Thomas was felony gun possession. Prosecutors argued for the lyrics’ admission as a written confession to the crime, even though the defendant didn’t dispute possessing or firing the gun, only the circumstances of his doing so. The prosecutor argued that not only were the vague lyrics an admission of gun ownership, but that they supported a charge of murder over manslaughter. In closing arguments, the prosecutor stated, “You have a man here who carries around a loaded SKS assault rifle in his station wagon, who glorifies, sort of this mentality or bravado — you can look at some of what he writes about.”

Thomas’ murder conviction was appealed on the grounds that the jury wasn’t properly instructed about manslaughter committed in the heat of passion and that jurors were subjected to prejudicial lyrical evidence, among other procedural issues. The initial appeal to the Alameda County Superior Count faltered; in a dissenting opinion, however, Judge Stuart Pollak took issue with the use of rap lyrics, which he noted bore no resemblance to the alleged events.

“The lyrics would tend to evoke an emotional bias against the defendant with little or no relevance on material issues,” he wrote. “The trial court abused its discretion in admitting the lyrics, and… it is reasonably probable that defendant would have obtained a more favorable result absent the errors. I would reverse defendant murder conviction.”

A higher court eventually sided with Pollak, and Thomas’ conviction was reduced to manslaughter.

To Nielson, the most heartening legal precedent yet was set last year by the New Jersey Supreme Court in the case of Vonte Skinner. Prosecutors alleged that Skinner was guilty of an attempted murder in 2005. The victim initially identified Skinner as the shooter, but recanted on the stand. The prosecutor read thirteen pages of Skinner’s rap lyrics to jurors, despite the fact that they were mostly written more than a year before the alleged crime and bore no similarity to it. The ACLU got involved, Nielson and Kubrin wrote about the case, and last year, the state Supreme Court ruled unanimously to overturn Skinner’s murder conviction, stating that such evidence shouldn’t be allowed in trial without a “direct connection” to the alleged crimes.

In December, the US Supreme Court heard oral arguments in the case of Elonis v. United States. Central to the case is the issue of what constitutes a “true threat,” an amorphous legal standard that excludes certain statements from First Amendment protections. But, as Nielson is keenly aware, the case will also force the justices to grapple with speech in the context of rap, because the writing in question was posted to social media as verse. The defendant, Anthony Elonis, is an aspiring white emcee who goes by Tone Dougie.

Nielson, who wrote about the case in a USA Today article co-bylined by Michael Render, better known as the rapper Killer Mike, told me, “What I’m hoping will happen is that [the Supreme Court] will at least nod to the significance of the rap lyric form in that case.” It seems likely: During oral arguments, conservative Chief Justice John Roberts took the unusual step of quoting Eminem lyrics, prodding the government lawyer, Michael R. Dreeben, about whether they could be prosecuted.

“Roberts nailed it,” said Nielson. “The state basically said, ‘Well, no, he’s famous,’ and Roberts said, ‘Well, how do you become famous?’ What I suspect Roberts didn’t know is that rappers are prosecuted all of the time for their lyrics.”

Still, Nielson knows that, for rap and hip-hop culture, much of the damage is already done. In Rap on Trial, he cites a few emcees who dropped the mic for the last time after prosecutors used their recorded or written utterances to support criminal allegations. The chilling effect, Nielson said, is visible in many new rap music videos that feature disclaimers stating what should already be obvious: they’re works of fiction, often setting hyperbole, wordplay, and story-telling into the service of what’s often valuable cultural commentary. It’s a burden that doesn’t fall on other genres.

Deandre Mitchell has considered retiring Laz Tha Boy. “But then I figured,” he said, “they’re already trying to charge me with it, so I might as well make the music I want to make, because there’s still freedom of speech. I wasn’t charged with nothing. Everything was based on music.”

His upcoming EP is tentatively titled Rap on Trial.