Crime, Music, Rap

Rap-Crimination

Rappers, write what you're going to write, but be aware -- the police are watching.

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Rapper Tay-K (Taymor McIntyre) had been on the run for months.  He was one of several people charged in the conspiracy killing of 21-year-old Ethan Walker during a home invasion in Texas in July 2016.  After making bond, Tay-K was put on an ankle bracelet, but he cut it off and left town — a crime, in and of itself.

While there’s nothing unusual about skipping bail to avoid trial, what makes Tay-K’s case rare is that while on the run he made a rap video, “The Race,” boasting about his flight from the law.  The song blew up and (last I checked) had over 31 million views on YouTube.

Cops, especially U.S. marshals, don’t like anything less than having a fugitive rub his escape in their face.

Tay-K was arrested in New Jersey in June after three months on the lam.  He’ll be extradited to Texas to stand trial on the burglary-murder case plus the added charge of jumping bail.  The question of what part the lyrics from “The Race” will play in his case (in the least for the bail jumping) will loom large.  In that song he raps:

I woke up too moody, who gon’ die today?
Shoot a fuckboy in his motherfuckin’ face.

[and]

Fuck a beat I was tryna beat a case But I ain’t beat that case, bitch I did the race. I’m gon’shoot bitch, without a debate. I’m gon’shoot, you can see it in my face.

Prosecutors have been introducing rap lyrics against defendants for years.  Back in 2008, rapper Vonte Skinner, accused of murdering a drug dealer in New Jersey, was convicted after prosecutors were allowed to read from 13 pages of single-spaced lyrics Skinner wrote months before the crime.  Among the lyrics were statements like, “They don’t call me threat for nothin’… Into block wars, I am a vet. In the hood, I’m a threat.” 

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A New Jersey appellate court reversed the conviction (State v. Skinner, 95 A.3d 236), stating that because evidence in the case was weak (two eyewitnesses changed their stories), the lyrics were pivotal in convicting him. The appellate court ruled that their introduction was more prejudicial than probative, and only where the prosecutor can show a specific “nexus” between the words and the crime, should the lyrics or YouTube video be admitted.

New Jersey is the only state I found to rule as such.  Many state and federal courts have a looser standard on when rap lyrics are admissible.­­­­­­  If they can be used to show the defendant’s identity, motive, intent, or lack of mistake, even if it’s a more tenuous connection, most judges will let them in the case.  The only exception is that such evidence cannot be introduced merely to show the defendant has the propensity to commit a crime.  But with this standard it’s relatively easy for a prosecutor to come up with a persuasive argument on why the lyrics go to more than just that.

According to Judge Denny Chin writing for the Second Circuit Court of Appeals in U.S. v. Pierce, “Rap lyrics and tattoos are properly admitted where they are relevant and their probative value is not substantially outweighed by the danger of unfair prejudice.”

Rap lyrics played a role in the arrest and conviction of well-known Brooklyn rapper Bobby Shmurda.  According to NYPD detective James Essig, Shmurda’s raps and videos, which police had followed for years, were “almost like a real-life document of what they were doing on the street.”  By law enforcement’s count, Shmurda’s hit song, “Hot Nigga” included 14 confessions as well as ample depictions of his alleged crew making gang signs and holding weapons, drugs, and cash.

The video helped police identify suspects and make at least 15 arrests.  Shmurda and others were indicted for murder, attempted murder, weapons possession, and conspiracy.  Shmurda ended up pleading guilty to conspiracy and getting a seven-year jail sentence.  One alleged co-gang member, Alex Crandon, did even worse.  A judge in Manhattan sentenced him to 53 and 1/3 years.  The rap lyrics and video played a role.

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Writing rap lyrics, holding weapons and drugs in videos, and speaking about actual crimes bring the attention of the law.  Members of police gang squads are assigned to follow Facebook, Twitter, rap music, and social media to connect the dots between crime in their districts and rappers singing about it.

The information they find can be used to start an investigation against a suspect, to identify other suspects, and once identified, to make cases against them following their arrest.

With art imitating life, it’s tough for a defense attorney to keep this stuff out.

Don’t get the First Amendment mixed up with what a prosecutor can use in making a case.  While it’s true that every artist has the right to write lyrics any way he wants, that doesn’t mean they won’t be turned against him down the road.

Defense attorneys deploy all the obvious arguments, including artistic freedom:  Rap is often about creating a character,  not a verbatim portrait of the artist.  Just because Bob Marley wrote, “I Shot the Sheriff,” or Neil Young wrote, “Down By the River, I Shot My Baby,” doesn’t mean they killed anyone.  Everyone gets that.  But those are intellectual arguments, not visceral ones.

If admitted into evidence, once a jury sees those videos and hears those lyrics, it’s one big hole for a defendant to climb out of.

The logistics are the following: The prosecutor can seek to introduce whatever he wants against a defendant either as evidence of the crime, as an admission against interest, to show motive or intent, or to show a particular character trait that the defendant is denying.  So, let’s say rapper A is arrested for the death of B and denies ever having anything against B — lack of motive to kill him, for example.  If he has included in a rap song lyrics that show he clearly had a beef with B, the prosecutor will likely get those lyrics introduced.

Rap videos do not play well in front of most jurors.  Many may not be fans or aficionados of rap.  I find they have a hard time distinguishing between the oft-expressed violence, misogyny, and anti-cop attitude of many songs and the artist’s behavior in real life.

So rappers, write what you’re going to write, but be aware — the police are watching and if the lyrics show enough of a connection with a real-life crime they’re investigating and you admit to that crime in your video, you’re likely to be arrested and your lyrics used against you.

Toni Messina has tried over 100 cases and has been practicing criminal law and immigration since 1990. You can follow her on Twitter: @tonitamess.

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