Hip-Hop Is on Trial in America
May 15 2014
Illustrsation by Nick Gazin
On April 9 I sat in the second row of New Jersey’s Supreme Court as lawyers debated whether the admission of violent rap lyrics provided proof or prejudice in Vonte Skinner’s attempted murder trial. I was one of about 50 people in the circular, blue-carpeted courtroom, facing the judges, who didn’t look like particularly huge hip-hop fans. They were all white—four men with hairlines in various stages of retreat and two women who were likely sporting orthopedic shoes underneath the benches. Sitting right in front of me were four lawyers. Two were prosecuting him on behalf of the state, while the other two—one defense attorney assigned by the state and one from the New Jersey division of the American Civil Liberties Union—were fighting for Skinner. They were all also middle-aged, white, and categorically wack. They took turns arguing over Skinner’s rap lyrics, reading them aloud with the same stodgy awkwardness with which Brian Williams rapped Snoop Dogg’s “Gin and Juice.”
So far, Skinner has served (as of May 15) 2,084 days of a 30-year attempted murder bid. The chain of events that led him to that prison cell in Burlington County Detention Center happened on November 8, 2005. That night, Lamont Peterson was shot in the stomach, chest, back, and side of his head, instantly becoming paralyzed from the waist down. Peterson was a drug dealer working on a team with Skinner. When the police found Peterson lying on the street partially beneath a parked car, they asked him who had filled him full of lead. First, Peterson said he didn’t know. On the way to the hospital, he told another officer it was Skinner. Later, he reverted his account. Finally, after speaking with his mother, Peterson changed his mind once more and said it was Skinner.
Nine days after the initial shooting, Skinner was arrested while driving his girlfriend’s Chevy Malibu. In the back seat of the 212-pound black man's car the police found his book of rhymes, which they ultimately used to make his conviction. In Skinner's initial criminal trial, the prosecution read aloud 13 pages of Skinner’s rhymes, which featured bars like “I’m the [person] to drive-by and tear your block up / Leave you, your homey, and the neighbors shot up / Chest, shots will have you spittin’ blood clots up.” Even though some of the songs were written four years before November 2008, the prosecution claimed they proved his “motive and intent.”
The first trial led to a hung jury, but in the follow up Skinner was convicted of attempted murder. Skinner appealed, claiming that admitting the lyrics as evidence constituted a mistrial. The appeal judge agreed. Now that appeal has made it all the way to the New Jersey Supreme Court for the final decision.
It is impossible to know just how many trials have permitted rap lyrics as evidence because lyrics are often admitted and read in court without objection or questioning, so the stenographer does not take further note. But lyrics have been used in high-profile cases against rappers like Lil Boosie, C-Murder and Tupac affiliate C-Bo. And academics who have been called as expert witnesses in cases that question the admittance of lyrics, estimate that the problem is pervasive across the country. Prosecutors, on the other hand, argue that if an amateur rapper writes, sings, speaks, or just creates lyrics that advocate violence, he or she is more likely to commit a crime. This line of thinking has put rap on trial in America and many rappers behind bars.
Vonte Skinner’s case is especially important right now as the use of rap lyrics as evidence continues to grow. Detectives in New York City are now monitoring amateur YouTube rap videos for clues into gang violence and crime. And prosecutors are running with it. A training manual produced for the National District Attorneys Association advises, “Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant’s true personality.” If there’s no precedent set in New Jersey against using lyrics as evidence, artistic freedoms in outlets from videos to lyrics to social media posts will continue to break down and convictions made out of bias against rap will land more innocent people behind bars.
Rap as an art form is particularly vulnerable to bias in the courtroom. Dr. Stuart Fischoff conducted a study in 1999 called Gangsta’ Rap and a Murder in Bakersfield. The study tested the biasing effects that result from reading gangsta rap lyrics to a jury. Fischoff’s results were stark—people were more affected by rap lyrics than accusations of murder. To the jury, reading violent gangsta rap lyrics in court invited incredibly strong associations with negative personality traits. “This would suggest," wrote Dr. Fischoff, "that nice males don’t write ugly lyrics and that males who do are emphatically not nice."
A big reason for the bias some have against rap comes from misconceptions about the genre. Many outsiders don't understand its conventions. Charis Kubrin, an associate professor of criminology, law, and society at University of California, Irvine, relates rap to any other form of expression. “A horror film that doesn’t have violence in it, that doesn’t have blood, guts, and gore is not a good horror film,” Kubrin said. The same goes for gangsta rap.
Also, there is often a purpose behind hip-hop's violent and graphic imagery—a purpose that is either not understood or willfully ignored by the courts. The grisly and debauched lyricism is often a reflection of the culture we live in, and through those controversial words, the music addresses social and political concerns. Because of this quality, Ezra Rosenberg, who is fighting for Skinner on behalf of the New Jersey ACLU, believes rap lyrics deserve “the highest rung of the free-speech hierarchy.”
Although Yale has released an anthology of rap and most colleges have hip-hop studies classes, the general population still struggles to understand rap as a legitimate art form. “The art of rap is deceptive,” Jay Z wrote in his autobiography Decoded. “It seems so straightforward and personal and real that people read it completely literally, as raw testimony or autobiography… It's all white noise to them until they hear a bitch or a nigga and… feel vindicated in their narrow conception of what the music is about.”
With rap music, it's sometimes difficult to separate the narrator from the person speaking the lyrics, which is why those words have been landing artists behind bars.
“I guess some people in this country are allowed creative license and others aren’t,” said Tajai of Souls of Mischief, a 23-year-old Oakland hip-hop quartet. “I mean, you’re going to indict me for some music I made? In that case, shouldn’t Bob Marley be in jail for shooting the sheriff?”
“It’s not only ‘This is my life, the realest shit ever.’ I’m also trying to talk about kids in general,” Patrick Morales, otherwise known as Wiki of Ratking, said of his lyrics. “It’s not just for us or just from our perspective. It’s [for] all the kids of New York.”
With the reality that everything they write in a song could be misconstrued and used in a court of law against them, some rappers are already feeling the chilling results of cases like Skinner's
“I’m probably not going say everything that’s in my head,” Morales of Ratking said. “I like to not care about that stuff, but it’s only natural.”
The New Jersey ACLU’s amicus brief for the Skinner case was written by Rosenberg specifically to push the court to set a precedent and create a standard test for including rap lyrics in trial. It only allows them to do this when “evidence and the crime are so direct, both temporally and in fact, that admissibility will not abridge free expression.” Even so, it’s a spectrum, according to David Rudovsky, a senior fellow at the University of Pennsylvania Law School who teaches a course on criminal law and procedure. “On the one hand, it’s far too dangerous to admit lyrics because they’re too general, but even when we get to specificity, like the rapper explaining ‘I knifed her a certain way, cut off her legs a certain way,’ how do we know that’s not just idle rap?”
At the Skinner trial, the judges seemed to be leaning toward calling it a mistrial, repeatedly questioning and pushing the prosecution to explain how lyrics can legitimately prove a killer's motive four years after they were written. However, they seemed more hesitant about making a broad precedent on rap lyrics in general. Either way, “Most of the time Supreme Courts uphold convictions at the lower level when it’s about rap lyrics,” Kubrin said. “This could be a turning of the tide, if you will.”
“It’s becoming a big issue, but I think the New Jersey opinion will be a significant one because that’s a respected court,” Rudovsky said. “The lyrics were so general and so unconnected to the crime that it’s illegitimate for the jury to hear [them],” he added.
As the Skinner trial drew to a close, Rosenberg, the last one to speak before the judges, touched on the painful fact that one-third of African American males end up in jail in America today. The systematically ignored underclass started rapping in the late 70s and early 80s to shed light on that hidden condition and now they’re being prosecuted for it. “Gangsta rap arguably grew out of mass incarceration of African American males in cities,” Rosenberg said. “It is cruel and ironic that rap then contributes to this mass incarceration.” We’ll have to wait about three months to see if the New Jersey Supreme Court is ready to put an end to this vicious cycle.
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