Rap's Poetic License: Revoked 

East Bay prosecutors regularly use rap lyrics and music videos as evidence in criminal proceedings, a tactic that undermines a defendant's right to a fair trial and continues the legacy of stifling Black expression.

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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."

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