To all those who insist there is no such thing as bad publicity, Brandon Duncan would beg to differ.
Duncan, who raps under the pseudonym Tiny Doo, is currently facing 25-to-life for gang-related activities. He has not been tied to a specific violent crime, nor in fact does he have a criminal record of any kind. (According to the police, he was once arrested for pimping and pandering, though the case was ultimately dismissed.) Indeed, authorities do not necessarily believe that Duncan has ever been involved in a violent crime of any kind. Instead, San Diego authorities are charging him with the crime of profiting off of gang activity by making a rap album that talks about gang activity.
According to the LA Times,
Deputy Dist. Atty. Anthony Campagna noted of the case against Duncan, “We’re not just talking about an album of anything, of love songs.” The cover shows a revolver with bullets, Campagna told the judge.
The legal mechanism being used by the prosecution is CA-PC 182.5, which states that anyone who “willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that [criminal street] gang is guilty of conspiracy to commit that felony.” 1 It should be noted that prosecutors now say they have since uncovered social media posts that “prove” Duncan is a gang member; nonetheless, when he was arrested last May it was specifically and entirely for recording the rap album No Safety.
As of today, Duncan has already spent eight months in prison awaiting trial.
There are many ways in which we might discuss the odd case of Tiny Doo. The issue of free speech, always a hot topic round these parts, is probably the most obvious. (Though I will be very surprised if anyone here defends a 25-to-life consequence for making a rap album, even one with extremely violent and anti-social imagery.) There is, too, the legal issue. Obviously, IANABL. 2 But there are two obvious things of note on the legal side of things from a amateur such as myself: One, according to CA-PC 182.5, the authorities do indeed seem to have the authority to prosecute Duncan or any other rapper who raps about gang violence; two, it’s hard to believe that such a conviction would stand up to the inevitable appeal based on the First Amendment.
Today, however, I’d like to focus on the separate topic of race and music. Because what is happening to Brandon Duncan is not actually as outrageous and singular as we might like to think. The targeting of African American music and African American musicians — via government agency or political and social leaders — is actually as American as apple pie. As you will see, we’ve been doing it for as long as African Americans have been making music. And while there is probably truth to the claim that we’ve gotten better, the truth is we’ve never really ever stopped.
___________________________
“It sounds like jungles in the dead of night.” – Harry Anslinger, Federal Bureau of Narcotics
Over at Politico, there is an excerpt of Johann Hari’s new book, The Hunting of Billie Holiday. And while I generally try to avoid linking to either Politco or a disgraced journalist such as Hari, it’s well worth the read.
In his book, Hari uses Holiday as the human prism from which to view the campaign by federal, state and local government bodies in the United States to eliminate jazz music in the early and mid-twentieth century. The campaign was actually far more widespread than the excerpt in Politico might lead one to believe; still, there is probably no better example of the anti-jazz mindset than Hari’s choice: Harry Anslinger, the head of the Federal Bureau of Narcotics.
As Hari notes, jazz was considered dangerous by Anslinger because it was
mongrel music made up of European, Caribbean and African echoes, all mating on American shores. To Anslinger, this was musical anarchy and evidence of a recurrence of the primitive impulses that lurk in black people, waiting to emerge. “It sounded,” his internal memos said, “like the jungles in the dead of night.” Another memo warned that “unbelievably ancient indecent rites of the East Indies are resurrected” in this black man’s music. The lives of the jazzmen, he said, “reek of filth.”
Anslinger probably had more to do with America’s long-standing war against cannabis than anyone else. And while he certainly had problems with the drug itself, his main issue seems to have been with the social emergence of non-whites, especially in the world of the arts and entertainment.
“Please prepare all cases in your jurisdiction involving musicians in violation of the marijuana laws,” he wrote to his staff in 1939. “We will have a great national round-up arrest of all such persons on a single day.” Lest his staff misunderstand his main objective, as Hari notes, Anslinger added that the crackdown would affect not “the good musicians, but the jazz type.” As with all of the Bureau’s raids, the instructions were to shoot first.
It is important to note that Anslinger was not an aberration so much as a single link in a very long chain.
In the days prior to the Civil War, slave states made it a crime for slaves to possess drums or engage in drumming of any kind. This was by no means an arbitrary rule. Drums were used by slaves both as a way to communicate defiance and to plot uprisings. When you read of white Americans disapprovingly referring to the drums used in various types of black music as “jungle music” throughout US history, this is the root of it. The earliest seedling of America’s longstanding apprehension of black music was actually not the concern over the primitive dilution of white culture; it wast the fear of violent revolt.
This anti-drum strategy worked only so well, though. Slaves learned to talk and sing in odd (for the time), syncopated rhythms that mirrored the outlawed drumming styles. (Indeed, it is within this hidden and subversive vocal “drumming” that one can find the river source that would eventually lead to jazz, not to mention rock, reggae, funk, hip-hop, and really most every sub-genre of post-1950 popular music.)
In the early part of the nineteenth century, common wisdom held that in order to fully ingrain subjugation into the minds and hearts of blacks it was necessary to restrict their music and singing to Christian hymns. This, too, backfired. It wasn’t long before whites began to notice with some degree of alarm that blacks had developed their own “negro spirituals,” and that the thinly veiled, defiant themes of these songs ranged anywhere from escape (e.g.: Deep River) to bloody retribution against their masters (e.g.: Go Down Moses). Predictably, social and political leaders in both the North and the South began to speak out against the moral decay that was inseparably tied to this music, and authorities began to crack down on blacks who made too big a show of singing spirituals in public.
When seen in this context, the fearful reaction of American political, religious and cultural leaders to the advent of both the blues in the nineteenth century and jazz in the twentieth can be seen not as aberrations so much as part of a much larger tapestry. What’s more, this tapestry continued well past the jazz age.
We white Americans like to remember the war against rock and roll as a prudish stand against our being cooler than those who came before us. This is a conceit, and an inaccurate one. The reason that rock and roll was seen as a threat that needed to be censored (and in many places actually was) had nothing to do with Elvis, the Rolling Stones and Led Zepplin. It had to do with the source of the genre, which in the beginning was almost entirely made up of black musicians. The acceptance of rock had less to do with grownups being won over by it as it did with rock and roll gradually becoming seen as a white art form. This is true of every kind American music I can think of whose genesis comes from the minds and talents African-American.
The jailing of Brandon Duncan, aka Tiny Doo, is therefore nothing new. Rap and hip hop are currently undergoing the exact same hysterical moral condemnation that every from of black music in this country has had to overcome. And although I would argue we’ve probably come along way, we’ve not come nearly as far as we might like to think.
It is true, for example, that in today’s world we transform a certain number of black musicians into wealthy and beloved cultural icons even as we fret about the content of their music. It is also true, however, that we have always done this. Just as the twenty-first century has its Kanyes and Rihannas, so to did the nineteenth have its Frank Johnsons and Elizabeth Taylor Greenfields. 3
And even as mainstream society was applauding Harry Anslinger’s war against the “devil’s music” that was jazz, greats such as Duke Ellington and Mary Lou Williams were the toast of countless upper-crust black-tie parties in their honor — often being praised on those nights by the very public leaders who loudly condemned the moral lacking of their genre in the day.
It is true as well that in our modern and advanced present, we can say that our true objections to rap and hip hop are contained within those certain songs that have morally indefensible messages — murder, misogyny, drugs, outlaw mentality, etc. However, this too holds up less well to historical scrutiny. Go Down Moses, after all, has a not very veiled threat to kill the children of whites in retaliation for the crimes of their parents; a more horrific message is hard to find in most rap albums today. Yet we treat this song as an American standard; some of us even happily sing it in church on Sundays.
There is too the issue of double standards. For almost every complaint against rap and hip hop by those who would use it as culture-war fodder, there is ample evidence that similar complaints against white artists never transpire. The “fish ‘em and leave ‘em” trope might well be a poor choice of message to send to impressionable young men just starting out in the world of sex and romance. It’s also just as much of a staple of white rock and pop music as it is rap and hip hop. If there’s a popular conservative talk radio host out there explaining to his audience that the problem with whites is Satisfaction and The Wanderer, I’ve certainly never heard them. Likewise, it was a genuine controversy in our country when the rapper Common visited the White House. The problem, we were told, was largely based on his song Song for Assata. 4 Whether or not it is appropriate or for the writer of such a song to be invited to the White House is a question that’s up for debate. What isn’t up for debate is this: There is nothing in Song for Assata that you can’t find over and over in the music of Johnny Cash, Bob Dylan, or Bruce Springsteen — all of who have been invited to the White House by multiple presidential administrations, none of which merited the slightest whiff of concern.
In fact, it’s worth noting that there really is nothing that Brandon “Tiny Doo” Duncan has done that hasn’t been done over and over by other artists — not just black, but white as well. And if he is guilty of the sin of making money off the public image of gangs, than so too is Francis Ford Coppola, David Chase, and the Cohen brothers. None of whom, you will notice, any prosecutor in California is lining up to file charges against. Indeed, the real reason that Duncan has been sitting in jail might well be the lethal combination of being black, being a rapper, being controversial, and having neither a major-label record contract nor a large fan base.
Regardless, Tiny Doo is far from being the first African American to be targeted for making black music. He also won’t be the last.
[Pictures: Fisk Jubilee Singers, 1882 via Wikipedia; screenshot of No Safety album, Amazon; Harry Alinger, Wikipedia, Old Plantation Banjo Drum Wikipedia, Elizabeth Greenfield, Wikipedia, Rapper Common, Wikipedia]
Follow Tod on Twitter, view his archive, or email him.
- Though the law specifically relates to “street gangs,” it should be noted that California’s definition of such — which is specified in CA-PC 186.22-Subdivision f — can be broadly read to include just about any group of three or more people either committing or associating with someone who does commit a felony.
- IANABL = I Am Not A Burt Likko
- History has largely forgotten Frank Johnson and Elizabeth Taylor Greenfeild, but two hundred years ago each of them was da bomb. Each used to sell out the country’s largest concert halls to wildly cheering white audiences. At the peak of their success, each was arguably the most famous and popular musical performer in America.
Taylor was by all reports a master showman as well as an unparalleled band leader, who would go back and forth from safe-for-whites standards to “negro songs,” both of which were eaten up by polite society. Greenfield, meanwhile, was dubbed “the Black Swan” by no less than the New York Times, and at one time she became so renowned that the Queen Victoria paid for here to study “English music” and perform at Buckingham palace, just to see what all the Yankee fuss was about. She went on to form a highly respected opera company in Philadelphia
- If you’re familiar with the controversy but not the actual song, you can find the lyrics here and the history behind them here.
There is also a relatively long-standing aspect of using rap lyrics as evidence to prove that African-American men committed murder and other violent crimes:
http://www.slate.com/articles/arts/culturebox/2014/03/hip_hop_and_criminal_justice_the_absurd_literalism_of_prosecutors_using.html
There is a case involving True Threats that was argued in front of SCOTUS earlier this year and I wonder how the decision in that case will change the current prosecution you mentioned or the use of Rap lyrics as evidence in criminal trials. My guess is that it will not until one of these cases makes it the long and slow way up the courts and is heard by SCOTUS. Even then, I bet prosecutors will try and find ways around it.
The particular evil and irony seems to be that none of this has ever stopped any form of black music from being the dominant popular music in the United States. To really criminalize music, you need an enforcement mechanism that puts the war on some people who use some drugs to shame. But what prosecutors and their allies can seemingly do is send cautionary tales or make individuals suffer greatly as a beware.Report
Maybe we can’t stop all of the people who want to get high… but we can sure as hell make all of them feel paranoid.Report
Tod, this is excellent, and I’m extremely happy you wrote it. And not just because Common is in it.
Thank you for it.Report
Re: footnote [2]. As it happens, I am Burt Likko. And the Constitutional troubles of a prosecution for making a rap album are so blindingly obvious to non-lawyers that they need not be explicated at any particular length here. Duncan’s defense attorney is no dummy, and must surely have made a motion to dismiss at least that count by now. But, n.b., there are other charges pending against Duncan that stand apart factually from the music, and which allege more direct and overt personal involvement with gang activity than just rapping about it. Are they true? That’s what courts are for, and until and unless convicted, Duncan is entitled to a legal presumption of innocence.
The gray zone, such as it is, will not be “Can we bust this guy for selling drugs or capping rival gangbangers?” (obviously yes) or “Can we bust this guy for making music that portrays selling drugs and capping rival gangbangers in a positive light?” (obviously no) but rather “Can we use this guy’s music, in which he portrays selling drugs and capping rival gang members in a positive light, as evidence that he actually does sell drugs alongside his homies and put caps in rival gangbangers?”
The perhaps chilling news there is that most courts have answered that question with “Yes, that’s admissible evidence, and the jury can decide how relevant that evidence is.” I say “perhaps chilling” because perhaps that doesn’t chill you at all. Truth be told, I’m not sure it chills me all that much. Consider: a defendant accused of premeditated murder of his wife who wrote poems describing how he might go about killing someone with the same name as his wife probably ought not to be allowed to claim the First Amendment as a shield against the admissibility of that poetry. Because that looks like it’s super-relevant to the issue of premeditation. Record the poetry being spoken and dub in a beat track below the spoken word, and that’s getting pretty close to the kind of art we’re talking about here, and doesn’t really change whether it’s relevant to an actual legal issue of a criminal charge that doesn’t directly implicate the First Amendment.
Which is why the balance of this post is really important. Juries are guided to a very strong degree by their cultural imprints. There is a powerful cultural imprint suggesting that some kinds of hip-hop and rap music are strongly associated with actual criminal behavior, which is another layer on top of the pre-existing, seemingly intractable cultural soup which results in black people, particularly young black men, facing criminal charges finding themselves at a massive disadvantage as compared to similarly-situated defendants of other demographic backgrounds.Report
@burt-likko
The poem example is very specific. The rap lyrics as evidence seems more generalized because they do not contain evidence of the specific crime at hand but are just about the things rap lyrics are usually about. These things happen to related to drug dealing and gang life frequently. So I have no trouble admitting evidence that Larry murdered his estranged wife if the evidence is that Larry wrote many stories about murdering a woman where the murder happened to be named Larry and the murder victim happened to be his estranged wife and shared the same name and the murder was done in the same way. But that is very different than proving a guy was in a gang just because he wrote rap lyrics about being in a gang.
Would you use Guns of Brixton as evidence against Joe Strummer if Joe Strummer was accused of killing a cop? Would you use I Fought the Law (and the law won) as evidence that he committed a crime?Report
I was thinking of Bob Marley: not merely murder, but of a law enforcement officer! (Surely we won’t interpret as exculpatory that he did not murder the law enforcement officer’s subordinate as well.)Report
“Both the Sheriff and one of his deputies were murdered today. We have 3 solid suspects in the Sheriff’s murder. Their names are Bob Dylan, Bob Marley, and Eric Clapton. The murder of the deputy remains a mystery.”Report
@richard-hershberger Marley’s another great one that I didn’t even think to include in the OP.Report
Except the real-life dead sheriff’s name is “Smith”. Case dismissed.Report
Wouldn’t/shouldn’t eight months be long enough for a judge to have ruled on a motion to dismiss the charge only based on the album, so that at least that question would be settled?Report
My first thought was “yes, so why wouldn’t that have happened?”
This is from http://judgepedia.org/Judicial_selection_in_California
Trial judges are elected by popular non-partisan vote.
Oh. Well, there you go.Report
I don’t think popular election of judges would mean they can just indefinitely delay rulings they’d rather not make, or at least that we should conclude that that’s what’s happening here. If pressure to not to dismiss the charge were determining what is happening, I have to think they’d just rule that the charge can stand in a relatively timely way. Maybe it’s not actually so untimely given the caseload, or maybe there has been terrible representation.Report
Seems to me there are three parts to the law he’s being held under:. a) that Tiny willfully benefited from b) activities of a gang which he’s a member of which has c) engaged in felonious activity. Seems like the got him on a) and b) – or let’s suppose they do anyway – but c) cuts all the ice, no? If they can’t charge him or anyone else in his gang with the commission of a felony then they can’t charge him under the relevant law.Report
@michael-drew and @jaybird :
You’re prompting me to be very cynical, about members of a rank of the legal profession which I aspire to join. Cynical lawyers might respond to this by pointing out that elected judges have an incentive to always appear to be on the side of law and order and thus skew rulings in favor of the prosecution so as to appeal to voters. Cynical lawyers might say that judges are timid and afraid of being overturned on appeal, and therefore will defer making decisions for as long as possible — including but not limited to, during trial, admitting evidence that maybe ought to be excluded.
But as I look closer at what it means to be a judge and to be faced with these issues and the frankly surprising lack of direct, on-point guidance, the more I think it’s not timidity or fear of electoral consequences. The judicial retention rate in California elections is high to the point of approaching 100%; it’s statewide news when a judge is voted out of office. And every judge I’ve appeared before as a lawyer, without fail, has expressed a lack of concern with being overturned on appeal — no judge ever goes without reversal, but very few of them are reversed all that much, so a low number of reversals is acceptable, and maybe this is one.
What I see now is the use of a lack of decision to prod the parties to reach a resolution. “Hey, defendant, you maybe want to consider a plea bargain because I might just let this evidence in and that’ll make it look really bad for your client,” at the same time saying, “Hey, prosecution, you maybe want to offer a reasonable plea bargain because I might just deny you the ability to offer this evidence and then your case is going to kind of suck.” So the judge can take a contentious issue under submission, say she’s sending it down for review with a research attorney, or for whatever other procedural reason to kick the can down the road as far as she can — because it causes the parties to experience risk and uncertainty. Risk motivates parties to compromise, both in criminal and civil cases.
I can certainly see objections to this, as well. Why should a person who is innocent be incentivized to plead guilty? Or, conversely, why should a prosecutor who is certain of obtaining a conviction on all counts back down? From the judge’s perspective, that’ll work itself out in terms of evaluating one anothers’ bargaining strength. My experience with this sort of thing has been in civil cases, but of course it applies in criminal matters, too: an innocent defendant bound to eventually succeed may only ever agree to a misdemeanor plea and time served; a sure-to-be-convicted defendant may agree to plea to some lesser-included felony and the People agreeing to recommend a mid-range or short-range sentence. If one or the other side overestimates its own bargaining strength, there are signals that can be made to bring them back to reality, up to and including actually making a ruling on a disputed issue. The point is to encourage the parties to work it all out.
And before you ask… Yes, I do want to do things like that if the Governor ever gives me the honor of trying. Settlements are, except in very very rare kinds of cases, better than verdicts for everyone involved. That’s how justice works, ladies and gentlemen. If the gears grinding together inside the black box of “justice” don’t look so pretty, well, neither do the gears grinding together in the black box we call “democracy,” either.Report
Burt, with all due respect, this…doesn’t sit well with me. This guy’s been sitting in jail for eight months of his life *already*. The time spent in there doesn’t benefit him in any way as far as I can tell, but it certainly seems to keep stacking leverage on the prosecution’s side – for example, giving them more time to build (or manufacture) a case against him, and psychologically demoralizing him, and depleting his family’s finances.
If there’s a charge that the judge knows is CLEARLY nonsense on stilts and he isn’t ruling to dismiss that ASAP with extreme prejudice, how is he serving justice, and the defendant’s right to a speedy and fair process?Report
Fair enough, @glyph , if the charge in question and the hold in jail were based only on the contents of the recording. It’s evident that there are a whole bunch of counts against the defendant.
If the prosecution has proffered evidence suggesting the defendant has otherwise profited or benefited from the criminal activity (for example, and I don’t know if these are the charges brought in this case, sharing the proceeds of a drug sale), then the charge ought not be dismissed. Again, I have to assume that the defense attorney is not so dim as to have missed this, and I have to assume that the judge, as anxious as she might be to encourage a plea arrangement, is going to make the right ruling.
To the extent that you protest that justice delayed is justice denied, well, that’s a valid complaint indeed.Report
I wrote this below but it’s more on point here, and it might have a chance of catching Burt’s eye if I reprint it where he’s looking, so:
I think I misunderstood @Burt Likko where he said “there are other charges pending against Duncan that stand apart factually from the music, and which allege more direct and overt personal involvement with gang activity than just rapping about it.”
Meaning, maybe he meant that there are charges other than the ones that stand only on the music that stand on other evidence, even though they may also use the music as suggested in Burt’s second paragraph.
The issue is whether there are any charges left that do stand only on the music, or even only with the music (i.e., there is other evidence, but so little that without the music ordinarily such charges would doubtlessly be dropped). And: when the evidence that was added to the music for the charges most reliant on the music was gathered and presented to the judge.
Also, I suppose, just whether it would be normal for a judge to make a ruling that there is not enough evidence to support a particular charge when there is enough evidence to hold the person. Maybe that latter determination is as much as a judge is ever interested in at that stage of the process.
I guess I just broadly don’t understand how this guy has been held for eight months. He’s charged with murder, but in a nonviolent capacity. Many people would be released on bail in such a situation, I think. But maybe not. I wonder what the arguments have been regarding bail.Report
@burt-likko @michael-drew Consider this a TTMLIS comment for you lawyers.
You guys (I think?) keep talking about other non-rapping crimes that Duncan is being held and/or charged with. The CNN report linked says (with emphasis added),
I’m assuming after reading your comments that I’m reading it wrong, but I read that to mean that the multiple charges are based entirely on Duncan’s album, and not a belief that recording the album is proof of separate crimes he committed. So my question to you guys is basically that I am seeing one of there possibilities:
1. CNN is just performing bad, sensational reporting,
2, I’m just totally reading the article wrong, or
3. My lack of knowledge about criminal makes me not realize… um… I don’t even know, to be honest. But something.
Where am I missing the boat?Report
IANAL. Although I do live with one, who clerks for a county judge (in family court).Report
My bad. I could have sworn you were.
To Burt then, and any other lawyers out there. (Or non-lawyers who know more about this stuff than me, which is basically everyone here I think.)Report
Tod, the way the law you quoted in the OP reads, there are three conditions which have to be met for that law to be applied: a) benefit from b) membership in a gang which c) committed a felony. So if the law is applied correctly, they have make the felony part stick. (Is there any other way to read that statute?) But if they had that already – that is, if they thought they could prove that in a court of law – they’d have charged and tried him already. My guess is that they know the gang was involved in the shootings (or something!) but don’t have enough evidence to make that stick in court. So the whole thing rests on a perhaps understandable but nevertheless inappropriate (mis)application of the law. ???
And since I say that like I know what I’m talking about I’ll add some question marks at the end to invite corrections. I mean, I think I’m wondering the same thing you are, to some extent.Report
@stillwater Huh. I definitely do not read it that way. (Maybe because of the use of “or” and not “and?”)
But like I said, one would have to be a fool to assume I am reading it correctly unless by accident.Report
Here’s the full statutory text from the link you provided:
any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.
As I read it, this law is applicable to Tiny Doo a person who a) “participates” in a gang and has b) benefited from the c) felonious conduct of members of that gang. Maybe I’m misunderstanding the charges against him, tho, since I thought his having made and sold an album relating to those events was part of the evidence against him.
How come you can never find a lawyer when you really need one?Report
You couldn’t find this lawyer on demand, @stillwater , because he was watching House of Cards after a long day of client interviews and drafting of Rule 26(f) disclosures.
I am at the moment preparing a dissection of the criminal charge at issue here, which to my mind misses the most important issue that the OP raised: not so much what the charges are exactly here but the degree to which the defendant’s association with “black music” is going to constitute, by itself, evidence of his criminality. That’s not really so much about the nature of the charges as it is the fact that there is rap music with lyrical content relevant to the criminal case at all.
Stand by, Laird Laphroaig and I will have some law for you shortly.Report
Here you go. See you in the a.m., professional obligations of the day permitting.Report
Laphroaig!
Legal post!
Huzzah!Report
And, belatedly — even after I used teh Google, I can’t tease out the acronym TTMLIS.Report
Talk To Me Like I’m StupidReport
Got it. See my explainer post, then. I promise the Scotch didn’t affect my analysis one bit.Report
We should create a new tab on the blog header with commonly used abbreviations.Report
.” I say “perhaps chilling” because perhaps that doesn’t chill you at all. Truth be told, I’m not sure it chills me all that much. Consider: a defendant accused of premeditated murder of his wife who wrote poems describing how he might go about killing someone with the same name as his wife probably ought not to be allowed to claim the First Amendment as a shield against the admissibility of that poetry.
I think you’re neglecting to consider that this is not personal poetry, written in a diary — but a produced work, done for the purposes of sale, publication, dissemination, or otherwise public display.
It’s an entirely different context, and an important one I think.
Moreover, I think you’d need something a bit more specific, especially with works for publication or sale — the fact that a man writes, for instance, murder-mystery novels is hardly convincing in a murder trial. However, if a yet-to-be-published work eerily echoed an actual murder, then there’s something useful.
But trying to use rap that glorifies gangs to show he’s a gangster? A huge chunk of rap talks about gangs — that’s more akin to claiming the guy’s a murderer because he wrote murder mysteries, and not epic sci-fi. The guy’s trying to sell songs about literally one of the most common rap topics.
It’s such a tenuous, pointless reed. I guess my problem with it boils down to: It’s the sort of thing you’d only use if you had no evidence, and using such stupid evidence proves you’ve got no evidence, so why would you bother.
“I’m charging this man with murder because he writes murder mysteries and we found a dead body within 5 miles of his house”.
If that’s all your reasoning, you need to leave the court in shame. And if you have other reasons, why did you bring that one up you idiot?Report
“I’m charging this man with murder because he writes murder mysteries and we found a dead body within 5 miles of his house”.
Except there isn’t even a body.Report
We found a snow angel though. So clearly there was a body there at one point.Report
That’s some mighty fine police work there, Lou.Report
I am having trouble wrapping my head around how prosecutors in San Diego – which is not a tiny podunk town but is rather a reasonably-large city, where you’d expect them to have a passing knowledge of things like “rap” and “The First” – ever got this bright idea.
Are they really this dumb? I mean, I want to believe that they somehow really *know* he’s Al Capone and they just can’t get him on anything else so they are trying this out of desperation because it’s all they’ve got, but this just seems so stupid.Report
San Diego is historically the most right wing of all the major cities in California, (discounting Orange County as a ‘major city’ and just part of Greater Los Angeles)Report
It also has historic ties to the U.S. navy and therefore, a respect for authority type tradition.Report
Is this true? Did not know that.
I would hasten to add, however, that at least in terms of the OP subject matter, ‘conservative v liberal’ is a poor and inaccurate lens to view the history of the way Americans have responded to black music.Report
Though ‘White (Protestant) Christian Values” is something the entire state of California was largely built on, and how we got both Nixon and Reagan out of its political system. Like Lee said, largely because of the military tradition, San Diego still possesses some vestiges of a now dying socio-political dynamic.Report
Tod,
yeah, big Navy base there.Report
Prosecutors are capable of great authoritarian flights of fancy at times. If you change some letters prosecution becomes persecution.Report
If you change some letters, prosecution becomes abecedarian.Report
This made me laugh harder than it had any right to.Report
Of course, we do not know what the NSA dug up on him for the prosecution.
If they haven’t dismissed already, is there any possibility that that information might play into this in any way? His phone calls and locations, where his car went (if he had one) etc. as evidence that we don’t know about?
And if so, Blech. Double blech. But I can’t help but ask if this might be the case, @burt-likkoReport
I go back to “This is such stupid evidence that the only reasons I can think of for you to call this evidence is if (1) you had no better evidence or (2) you are a complete and total idiot at best and racist as heck at worst” because, you know, it’s stupid evidence.
Just because they’re calling this evidence doesn’t mean they don’t have stronger evidence, but why they would use the obviously stupidly weak evidence when something stronger existed (or when “We will discuss our evidence in court” is an optional answer) is beyond me.Report
I don’t know, I’d like to agree with you, @morat20; but I asked because the third option might be that the evidence was collected under the Patriot Act, and be classified; particularly if they’re using provisions of the Patriot Act to go after gangs as terrorists. Seemed then that they would only be able to discuss the non-secret evidence; but perhaps I’m missing something, and I’d love to be corrected.Report
What’s wrong with stating the evidence is classified? It’s not like America hasn’t adjusted to it, for good or ill.
It doesn’t have to be publicly stated, after all.Report
@morat20 aren’t the courts themselves secret? Would that mean that the fact that the evidence is classified be classified?
(I’m feeling really paranoid now, like I’ve been listening to Alex Jones all day.)Report
I doubt very strongly, based on instinct and what we know from various public sources (official and the ones that the government wishes we hadn’t seen), that the federal government spends any time monitoring the communications of a random street gang in a random city. Or rather, even if they do, that they have the desire or the wherewithal to be able to analyze those communications for a pattern of activity that they are then able to turn over to municipal level law enforcement authorities.Report
Maybe the DEA saw his car traveling to/from known gang locations:
http://www.wsj.com/articles/u-s-spies-on-millions-of-cars-1422314779
Or, maybe San Diego is taking notes from Oakland:
http://www.eastbayexpress.com/oakland/the-real-purpose-of-oaklands-surveillance-center/Content?oid=3789230
“And cameras are just the beginning: Documents mention monitoring “social media,” “web feeds”, and “text messaging”.Report
@glyph all that, thank you.Report
You know, I try not to be paranoid, because it’s not good for your mental health, but reality keeps conspiring against me.Report
@zic
Yeah, I think you’re exactly right, and I think I misunderstood @burt-likko where he said “there are other charges pending against Duncan that stand apart factually from the music, and which allege more direct and overt personal involvement with gang activity than just rapping about it.”
Meaning, maybe he meant that there are charges other than the ones that stand only on the music that stand on other evidence, even though they may also use the music as suggested in Burt’s second paragraph.
The issue is whether there are any charges left that do stand only on the music, or even only with the music (i.e., there is other evidence, but so little that without the music ordinarily such charges would doubtlessly be dropped). And: when the evidence that was added to the music for the charges most reliant on the music was gathered and presented to the judge.
Also, I suppose, just whether it would be normal for a judge to make a ruling that there is not enough evidence to support a particular charge when there is enough evidence to hold the person. Maybe that latter determination is as much as a judge is ever interested in at that stage of the process.
I guess I just broadly don’t understand how this guy has been held for eight months. He’s charged with murder, but in a nonviolent capacity. Many people would be released on bail in such a situation, I think. But maybe not. I wonder what the arguments have been regarding bail.Report
@michael-drew I think I’m being unclear: is there the possibility that some (or the most substantial part) of those other charges kept secret as a matter of national security; that they are classified, and so we are not privy to them? I’m just imagining here, but something along the lines of placing his cell phone at or near a murder or robbery, etc. (and with possible lyrics that accurately describe the event, too).
I don’t think that the courts can make such charges, if they’re filed under some provisions of the Patriot Act (and other laws in the War on Terror) part of the public record. I want to know if there’s the potential for other, more weight charges, we are not be informed of? There would be no great incentive for anyone in justice to allude to this in any way; so it feels a black box, and I want to know if I’m only imagining it or fearing something actual.Report
That possibility exists, but the more mundane possibility also exists that they arrested him based on the music alone because they knew they could make that work for at least a few weeks, hoping and realistically knowing that they’d eventually gather enough evidence* conventionally that they wouldn’t have to hang any single charge on literally nothing more than the music.
And the rest would then just be a CrimPro exam question.
* But to your point, sure, it’s also entirely possible some of this evidence was developed with the help of the NSA, or even that some of it is confidential for NS reasons. I tend to doubt the latter, but it’s sure possible.Report
@michael-drew please don’t get me wrong here; remember, I’m married to a professional jazz musician; I’ve lived with this history and heard a lot of these stories from people first hand. I’ve friends who played Bop in NYC in the 50’s; best man at our wedding and our housemate for two years went through a lot of this kind of stuff.
I just thought this the only plausible legal reason, and one that required frisking in this sad, sad story.Report
I don’t understand how you think I might be getting you wrong, @zic. I keep saying that what you suggest is entirely possible.
What do you think I think that would have you wrong? What have I said to make you think I might think that?Report
@michael-drew I’m not sure you did so much as I felt that looking for a substantial reason for this might somehow suggest that I was insensitive to reality of making controversial music while being black; that I was seeking to justify it in some way.
In 2004, I helped put on a show at a very tiny club, about 20 people in the audience, a parody of “Jesus Christ Superstar,” renamed “Jesus Christ Terrorist.” It was pretty good; too; ironic in a nice, hippy-chic way. There were also more cops around the club in their cars then there was room for people in the building; it was a fascinating display of keeping people safe from artists while not ever actually exiting your vehicle. Talked to our Town Manager about it the next day (he was a Libertarian, too), and he admitted someone higher up than local had called the forces out, presumably because of the performance name, and that it was an incredibly stupid waste of resources in an area where a normal call can take two or three hours if he cops on the other side of the county.
Thankfully, nothing happened. No hippies busted, no rioting, no guns brandished, though I do think a good bit of weed got tossed into the puckerbrush and flushed down the toilet; I don’t remember for sure.Report
I could be ultimately proven wrong, but I really don’t see much of a national security angle at play here. Nothing in the criminal complaint even hints at anything like that.Report
listening to some of the subject album (warning: needless to say, really really NSFW lyrics, f words & n words abound), I’m thinking of what Jaybird said a bit earlier – they’re getting him for microaggressing while black.Report
“He’s microaggressing right at us! Stop microaggressing! Stop microaggressing!”Report
Tod, this is awesome.
https://www.youtube.com/watch?v=h4ZyuULy9zsReport
@zic Yeah. It totally is.
Thanks for post that.Report
@tod-kelly I meant your post is totally awesome. Holiday is just heart rending. Deeply, cruely, heart broken and loss performance. I suspect it’s stuff like this got her sent to jail.Report
Oh, thanks.
And agreed about Billie. If it weren’t for Ella, she’d be my favorite jazz vocalist of all time.Report
All I am gonna say is that this makes me want to just jump up and give the gov’t more power over all sorts of things that… Oh crap, I can’t even be sarcastic about it.Report
This thought kept popping up in my head the entire time I was writing the OP.Report
Great post, dumb f’ing prosecution. But to note another minor example of this kind of Huckabee has been making waves the past week or two about how horrible a parent O is for letting his kids listen to Beyonce. Stewart made the Huckster look like a chump on his show about it although that is fish and barrel territory.Report
Yeah, exactly. I actually added a short paragraph about that, but it ended up on the editing scrap floor.Report
“It is important to note that Anslinger was not an enigma so much as a single link in a very long chain.”
I think it might have been more of an anomaly than an enigma that he was not so much of.Report
He was not an anomaly wrapped in an aberration shrouded in an exception?Report
I can use my left hand as easily as my right. My doctor says I’m ambivalent, but I’m not really sure how I feel about that.Report
@krogerfoot – off-topic (not that I was particularly ever on it to begin with) – I didn’t schedule a listening party tonight because we were supposed to have company, but plans have changed and now my evening is open again.
Is it too late to schedule it for you? Should we just wait for next month?Report
Let me check my schedule (ha!). Sure, I’m game.Report
OK, I’ll send it out and throw up an off-the-cuff. Might just be me and you.Report
Thanks, @krogerfoot. That was a rototiller on my part.Report
The absurd prosecution of Tiny Doo aside,(absurd at least according to the information that I presently have; it may turn out that there is some piece of information missing from the current press reports that could change my mind), the above is the heart of the matter to me.
About the biggest beef that I have with both the proselytizing right or left is how ahistorical their various crusades tend to be. It is easy enough to imagine that the past is the past and that we have rid ourselves of most of the prejudices that enabled the injustices of that past, easy enough to believe that this time we will get it right. As you say, however, this just does not hold up to historical scrutiny.
Every time we decide to hand over more power to the government, more power to bureaucratic institutions, the original purpose of that decision gets seconded to bureaucratic inertia itself. Intentions hardly matter. And more importantly, every time that bureaucratic inertia does its thing, the people who bare the brunt of the harm are the people who are already marginalized. That is just the way that this game is played.Report
“The targeting of African Americans
music and African American musicians— via government agency or political and social leaders — is actually as American as apple pie…”FTFY.Report
Anslinger probably had more to do with America’s long-standing war against cannabis than anyone else. And while he certainly had problems with the drug itself, his main issue seems to have been with the social emergence of non-whites, especially in the world of the arts and entertainment.
You know, I was reading a book the other day, (To Say Nothing of the Dog, by Connie Willis), and a character in it argued a ‘Great Man’ theory of history, the idea that history is mostly shaped by various people. Vs. the idea that such men are merely products of their societies and if they were not there, someone else would replace them.
This debate is entirely played for laughs in the book, which is about time travel.
But sometimes I think the Great Man theory is literally backwards. History might actually be described better as a series of *horrible* people, with insanely stupid and destructive ideas that echo long after the person is dead.Report
Fantastic post, Tod, thanks for writing it.
It’s rather stunning that recent arguments over free speech focus on denouncing the idea that just because someone (usually white) has the right to say something, that doesn’t mean they should say it. Or arguing that creatively defacing bigoted ads violates free speech. Meanwhile, a black guy has been jailed for eight months and is being prosecuted for saying (or singing) something the authorities don’t like, and it’s flying completely under the radar.Report