The first time Erik Nielson testified in the trial of an aspiring rapper was nearly a decade ago in Ventura County.
An Ojai Valley teenager named Alex Medina had been charged with first-degree murder as an adult with gang enhancements after a stabbing at a house party. Hoping to win a conviction, prosecutors had introduced some of Medina’s lyrics as a key part of their evidence, arguing that the words should not be treated as creative expressions but as “diaries” of his actual “gangsta” behavior. .
It was up to Nielson, then an unknown academic pundit from Virginia who grew up “one of those white suburban kids who loved rap music,” to push back.
“Rap lyrics,” he testified at the time, “are so unreliable that it’s very hard to tell what might be true and what might not be true.”
Well, Medina was convicted anyway. And in the years since, dozens of other rappers across the country have had their lyrics used against them, too, with prosecutors and police mining old songs and videos in search of alleged evidence of gang activity.
Through it all, many of the upper echelons of the record industry have said and done nothing, apparently preferring to pretend that black and Latino men aren’t being thrown in jail for making music.
That is, until now.
Awaiting Gov. Gavin Newsom’s signature is Assembly Bill 2799, which would make California the first state to restrict how forms of creative expression, from music to books, can be used as evidence in criminal proceedings. The state legislature passed it unanimously.
Assemblyman Reggie Jones-Sawyer, the Los Angeles Democrat who wrote AB 2799, said he didn’t know how many men of color, particularly black men, were being persecuted with their lyrics before the record industry approached him. And then he got scared.
“They were the first ones that really enlightened me,” Jones-Sawyer confessed.
Nielson isn’t surprised at all. The recording industry has a reason to talk about such things now, particularly with legislators at the state and federal level.
Two of rap’s biggest stars, platinum-selling rapper Young Thug and his top protégé Gunna, are facing gang-related racketeering charges in Georgia, with their lyrics and music videos being used as evidence. Both have been in jail for months.
“We’ve wanted to see more support from the record industry for years, but only once will it clearly come to fruition,” lamented Nielson. “Someone like Young Thug made it happen because that’s usually a practice that targets aspiring artists and amateurs, not someone with his profile or his resources.”
Many people will remember the pearl held by NWA’s “F— Tha Police” in the 1980s and almost every album released by the 2 Live Crew.
Gen Xers, in particular — and millennials who wish they were Gen Xers after the Super Bowl halftime — will remember when a prosecutor awkwardly referenced lyrics from “Murder Was the Case” during Snoop Dogg’s trial in 1993.
“Murder is the crime they committed,” the then Deputy District Governor. Atty. Robert Grace told the jury with a straight face.
Well, things have gone beyond pearls and they are strange.
Since filing in Ventura County, Nielson says he has worked on about 100 cases in which lyrics have been used as evidence in criminal proceedings, including 15 he expects to go to court in the near future.
The associate professor at the University of Richmond has become the official national advisor. In all, he and fellow researcher Andrea L. Dennis have identified more than 500 such cases in the books since 1991.
“I can definitely say that my workload has increased exponentially,” he told me.
When prosecutors went after the late Los Angeles rapper Drakeo the Ruler, citing his lyrics, it was Nielson who connected his family to defense attorney John Hamasaki. And it was Hamasaki who was able to secure a lesser charge and win his release.
It was just the latest in a string of cases in which he represented rappers.
The first was in 2014, when Hamasaki was the lawyer for Laz Tha Boy, a Bay Area rapper who had been charged in two gang-related shootings, even though the main elements of his gang association were rap lyrics and videos.
“It taints a case. It brings in more information that is otherwise inadmissible,” said Hamasaki, who is now running for San Francisco district attorney. “The biggest problem is taking an artistic outlet and using it to criminalize someone and not acknowledge, hey, just because someone talks about having a gun doesn’t mean they have a gun and they shot.”
But there is an obvious reason why so many prosecutors refuse to separate the fictional narrative from the actual reality. It’s because the shameless tactic very often works with juries.
Nielson can convict cases involving rap lyrics in which they were convicted, even when there was no other credible evidence.
In a study conducted in the 1990s, researchers presented violent lyrics from a country song to two groups of people. The first group was told it came from a rap song. The second group was told that the lyrics came from a country song.
“The group that thought this was a rap song thought it sounded a lot more menacing and needed an arrangement than the same lyrics that were labeled as country,” Nielson said. “This study was repeated in 2016. Same findings.”
This is telling since rap has evolved since the early days of NWA to become a massively profitable genre of music that Americans of all races and ethnicities are supposed to love, accept and celebrate. Rap may be mainstream, but juries, taking the lead from prosecutors, prove racism is too.
Therefore, it is incredibly important for Newsom to sign AB 2799 into law. It would ensure that prosecutors in California would be forced to meet new requirements, such as proving in a pretrial hearing how a particular song or movie is related to the case at hand.
As Jones-Sawyer told me, “the justice system has to be fair.”
This is also why it is important for lawmakers in New York to pass a bill that would prohibit prosecutors from using creative expression as criminal evidence against a person without clear and convincing proof that there is a literal, real connection.
Nielson has been deeply involved in this effort, much of it stemming from a policy proposal in his 2018 book, “Rap on Trial.” In January, a constellation of rap stars including Jay-Z, Meek Mill, Yo Gotti, Big Sean and Killer Mike joined him in signing a letter encouraging lawmakers to pass it.
There are some concerns that New York’s legislation — also supported by the recording industry — is tougher than California’s AB 2799, particularly because the latter is identical to legislation being considered by Congress. However, this is a case where something is better than nothing.
“I think there was some pride that New York, the home of hip-hop, would also be the first state to protect it,” Nielson said. “And now that California has robbed them a little bit, I hope there’s some sense that this isn’t actually a radical proposal.”
This is the kind of East Coast-West Coast rap rivalry we need.
Not just for Young Thugs and Gunnas, the rappers who made it. It’s for the rappers who haven’t.
Remember that when you hear that the Los Angeles and San Francisco chapters of the Recording Academy are urging Newsom to sign AB 2799 so that “all artists can express themselves freely without fear of retribution” from the criminal justice system.
Not just the ones making millions of dollars for the record industry.
This story originally appeared in the Los Angeles Times.