Anything You Can Spit Can Be Used Against You

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It was early May 2007. Two friends, 16-year-old Christopher Horton and 20-year-old Brian Dean, were sitting on a porch on 23rd Steet and Orcutt Avenue in Newport News, Va., in the city's downtown neighborhood.

Someone walked up to the porch where they were sitting and opened fire with a handgun, killing both Horton and Dean.

The killings were two of 28 murders reported in Newport News in 2007. Fifteen of those homicides occurred in the south precinct of the city, where Horton and Dean were killed. Newport News, a city of just over 180,000 residents, has been plagued by gang and drug violence in the downtown area for years.

Tai Horton, the sister of Christopher Horton, said that in the aftermath of the killings, she's been the target of threats in her neighborhood.

"It's people doing this, people causing pain to these families," she says. "You get the bad people out of the equation, and I think it will change. It's not the area, this area can be good at times." (Note: Tai Horton and the writer of this article are acquaintances.)

The case went cold for four years, but then a detective assigned to cold cases came across a YouTube video of a local rapper, Antwain Steward, who goes by the stage name Twain Gotti. Steward's music primarily focused on violence and the gang life in downtown Newport News, known to many in southeastern Virginia as "Bad Newz." The music, heavy in percussion and synths, was gaining a significant following in the streets and on social media.

The detective received a tip that Steward referenced the murders in his song "Ride Out" and was the gunman in the 2007 shooting. The affidavit notes that Horton was a member of "Dump Squad," a gang feuding with Steward's "MOR3SH3LLZ."

The affidavit quotes a verse from "Ride Out":

Everybody saw when I [expletive] choked him But nobody saw when I [expletive] smoked him, roped him Sharpened up the shank then I poked him.

In the lyrics, Steward raps about "choking" someone. But neither Horton nor Dean were choked. And in the last line, he refers to a shank and "poking," or stabbing, someone.

Again, both Horton and Dean were shot.

But the local police took the lyrics as a confession, and charged Steward in the Horton and Dean killings. Steward maintains that he's innocent.

Lyrics On Trial

In 2004, Alan Jackson, who was an assistant district attorney in Los Angeles, wrote a paper for the American Prosecutors Research Institute in which he suggested that prosecutors introduce lyrics as evidence of a defendant's personality:

"Perhaps the most crucial element of a successful prosecution is introducing the jury to the real defendant. Invariably, by the time the jury sees the defendant at trial, his hair has grown out to a normal length, his clothes are nicely tailored, and he will have taken on the aura of an altar boy. But the real defendant is a criminal wearing a do-rag and throwing a gang sign. Gang evidence can take a prosecutor a long way to introducing a jury to that person. Through photographs, letters, notes and even music lyrics, prosecutors can invade and exploit the defendant's true personality."

When Jackson spoke to NPR's Tell Me More in April, he argued that lyrics can be part of a larger body of evidence that might be useful to investigators and prosecutors. "If, in fact, we suspect someone of a crime and in their possession we find either rap music, rap lyrics, etc., that tends to corroborate other evidence that we have against that person, why should you be able to get a pass just because you call it art?" he asked.

Jackson went on:

"And I'll give you an example. Tattooing is often called art. In 2008, in People v. Anthony Garcia, there was a liquor store murder that had gone unsolved for about four years until Mr. Garcia was pulled over for, I think, driving on a suspended license or something. "Tattooed completely across his chest was the name of the store, the Christmas lights that were over the store, the bent light pole on the left of the store, the direction of the shots fired. And very notably, Mr. Peanut was the victim. The shooter was a chopper. Well, 'peanut' is what Rivera 13 gang members call their rivals. And his name — his gang name — was none other than Chopper. So the case against Mr. Garcia certainly did not rise and fall on the tattoo, but it was an investigative tool that was used to get to other evidence which then did implicate him in the crime. And now nobody would disagree with the argument that tattoos, generally speaking, are a form of art. But you don't get to confess to something, write something down and then set it to music and say, by the way, I'm going to call that art."

It's hard to know just how how many criminal cases have admitted hip-hop lyrics into evidence — the American Civil Liberties Union of New Jersey identified 14 such cases, while The New York Times reported that there were at least three-dozen similar cases in the past two years.

But critics contend that prosecutors and judges are making decisions about rap lyrics that they don't understand.

"As with any art form, especially with any fictional form, you have to keep the base of distinction between author and narrator in mind," said Erik Nielson, a professor of liberal arts at the University of Richmond who studies rap music in criminal cases. "That's especially true for rap music. And rappers do signal this to us. Almost all of them use a stage name, which is the clearest indication that they are in fact inventing a character."

Nielson said rappers stay in character even after they're done recording, like pro wrestlers. If someone isn't familiar with the kind of hyperbole that rappers use — embellishments that often reference the dangerous places from which they hail — the demarcation between fantasy and reality can be hard to distinguish.

In an op-ed, he pointed to a study by California State University, Los Angeles professor Stuart Fischoff. He described the study this way:

"Participants were given basic biographical information about a hypothetical 18-year-old black male, but only some were shown a set of his violent, sexually explicit rap lyrics. Those who read the lyrics were significantly more likely to believe the man was capable of committing a murder than those who did not."

That's why, he says, rap lyrics have no place as evidence in a trial.

In a publication written by Nielson and Charis Kubrin, a criminology professor at UC-Irvine, the two explore the history of rap as evidence.

"Rather than treat rap music as an art form whose primary purpose is to entertain, prosecutors have become adept at convincing judges and juries alike that the lyrics are either autobiographical confessions of illegal behavior or evidence of a defendant's knowledge, motive or identity with respect to the alleged crime. Over the last two decades, a number of high-profile performers — including Snoop Dogg, Beanie Sigel and even Lil Boosie's collaborator, B.G.— have had their lyrics used against them in criminal proceedings. But less visible are the amateur rappers who have increasingly seen their art form introduced as evidence against them."

One of those lesser-known rappers was Vonte Skinner, who was convicted by a New Jersey jury in 2008 of shooting and paralyzing a drug dealer. Prosecutors read violent lyrics found in a car Skinner was driving. The state argued that Skinner's lyrics were an explanation of the crimes he was accused of, although it was established that those rhymes were written four or five years before the crimes of which he was accused. He was sentenced to 30 years in prison. An appeals court later overturned the verdict, and New Jersey's Supreme Court has heard arguments in the case.

United States V. Rap, Et Al.



As more rappers use outlets like Facebook and Twitter to reach wider audiences, police are paying attention. A sergeant for the Newport News gang task force told a German newspaper that his employees spend as much time on the streets as they do on the computer, searching through suspected gang members' social media websites.

But at Steward's trial, the swaggering lyrics that were the basis of his arrest were barely mentioned; the Commonwealth's prosecutors objected to any questions about the lyrics. The jury deliberated for a little over four hours before finding Steward not guilty on two counts of second-degree murder, but guilty on the weapons charges. He was sentenced to 16 years in prison.

"We do know, based upon our research, that when those lyrics come in they often do secure a conviction," Nielson says. "And the prosecutor's decision at the last second to veer away has a lot to do with why Antwain Steward was found not guilty on both of the murders."

But are hip-hop lyrics, even graphic ones like Twain Gotti's, protected speech? That's the issue at the center of the case of Anthony Elonis, a Pennsylvania man who is serving nearly four years in federal prison for posting violent Facebook statuses about his wife and his job. Many of those Facebook posts were in the form of violent rap lyrics, although Elonis maintained that the postings were mainly a way for him to blow off steam. But prosecutors maintained that the lyrics were threats.

"Modern media allow personal reflections intended for a small audience (or no audience) to be viewed widely by people who are unfamiliar with the context in which the statements were made and thus who may interpret the statements much differently than the speakers intended," Elonis wrote in his petition to the Supreme Court.

The high court will hear arguments in the Elonis case later this year.