Guest comment: Prosecutors used rap lyrics as evidence in murder trial; it’s a racial bias


By Chessie Thacher

Rap lyrics are protected by free speech under the First Amendment. But too often, trial after trial of black men, prosecutors introduce this form of artistic expression to secure convictions for serious crimes that carry long prison terms. Simply put, rap is viewed unfairly by the courts, not as an art form, but as inherently incriminating evidence.

In an effort to prevent this type of racial bias from infecting criminal proceedings, the Northern California ACLU supported passage of the Racial Justice Act in 2020. The new law prohibits the state from convicting or to condemn someone based on their race, ethnic or national origin. If, during a criminal proceeding, a prosecutor, judge or witness uses racially coded language or displays racial animosity (whether intentionally or not), then that defendant can file a motion challenging his conviction. Under the law, a defendant can also challenge whether there are racial disparities in the relevant prosecution or sentencing decisions.

On Friday October 1, a Contra Costa County judge is scheduled to hold what we believe to be the first evidentiary hearing under the Racial Justice Act; it will be a major test of the new law. The question is whether prosecutors have shown any prejudice or racial prejudice towards Gary Bryant Jr., a black man and prolific musician, using Bryant’s rap lyrics and rap videos as evidence during his trial for the 23-year-old Kenneth Cooper murder.

Cooper was shot dead in his car during a chaotic scene in the parking lot of an apartment complex in Antioch. Bryant, who was shot first that night, said he was robbed and fired his gun in self-defense. But the prosecution argued that Bryant and a co-accused shot Cooper for the benefit of the “Broad Day” gang, and they used Bryant’s words to prove that theory.

At trial, Bryant, who did not have a violent criminal history, said he was not a member of the Broad Day gang and had no gang affiliation. The prosecution also never proved that Cooper was part of a rival gang. Nonetheless, a self-proclaimed gang expert with no knowledge of rap or hip-hop turned Bryant’s lyrics – some of which were just choruses of popular songs – into literal confessions of gang activity.

This “expert,” speaking in racist terms and using racial epithets, interpreted Bryant’s words with a vague or general meaning as much more sinister or violent. He testified, for example, that “to make a demo” means “to do a shoot”, whereas this expression has a much more obvious interpretation like to make a demo recording of his music. And according to the expert, “geek up”, which in common slang means “to be intoxicated”, actually means “to be armed with a gun”. Throughout the trial, the prosecution ignored the common practice of metaphor and mimicry, saying that when Bryant copied the lyrics from other more popular songs about shootings and violence, he was only confessing his own acts of violence.

The expert also claimed that Bryant’s display of a “B” hand symbol in a rap video conclusively demonstrated his affiliation with the Broad Day gang, even though former President Bill Clinton, the Golden State Warrior Steph Curry, actor William Shatner and singer Beyoncé Knowles have all been photographed carrying the same hand symbol and are not known members of Broad Day.

Ultimately, the jury – which by design had no blacks after the prosecution excluded the six potential black jurors based on their previous negative experiences with law enforcement – found Bryant guilty of murder with enhancements for gang activity. The court sentenced Bryant to life imprisonment.

At the evidence hearing on Friday, Bryant will present three expert witnesses, academics from across the country, who will detail the racial biases that arise when we bring rap to court, testifying that rap lyrics cannot be separated from context. or culture in the courtroom. Experts will also explain that in the majority of cases where musical lyrics are presented in evidence, the defendant is black.

It is because of cases like Bryant’s that the ACLU has worked to support the passage of the Racial Justice Act and why we are now fighting to make sure it is put into practice and not just words on paper. This month we filed a brief friend denounce the reluctance of prosecutors to release information that could help end discriminatory practices in law enforcement and prosecution. ACLU California Action is also now sponsoring legislation to make the law retroactive.

Racial justice law must be interpreted rigorously, as intended by the California legislature. A judge should not be allowed to look away when the prosecutor and the prosecution central witness make unfounded allegations that someone’s rap lyrics should be used to classify them as a member of a gang involved in violence.

It is time for this unconstitutional double standard to end.

Chessie thacher is an attorney with the Democracy and Civic Engagement program at the ACLU of Northern California, where she dedicates her time to First Amendment issues, government transparency, criminal justice reforms and voting rights litigation .

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