Using Rap Lyrics as Criminal Evidence

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S1: I’m Chao too and welcome to the second Slate Plus episode for Slow Burn Season 3. This season we’re exploring the lives and deaths of Tupac Shakur and Biggie Smalls two major figures in the world of hip hop in the 1990s. So I’ve got host Joel Anderson and producer Christopher Johnson here with me again in the studio.

S2: Hi guys. Hey hey. Got to be back.

S1: So let’s talk about the second episode of slow burn the same.

S3: You took a step back from the beginning to back drama to sort of look at the bigger world at large. When I went to the police the government and courts were taking aim at hip hop music. So why do you think this was important to look at at this point of your story.

S4: So you know we sort of set the scene in the first episode about the interpersonal relationships and how you know those sort of fracture but then we haven’t really set the time or the place or the context for that moment. LUDDEN more broadly about you know how Tupac came to be famous and infamous right. Yeah. And same for biggie. And so like there’s all this larger national conversation going on around them. And to understand how Tupac got to be sort of like a national villain and became a household name you need to understand like all these other things in the background which is like you know how Vice President Dan Quayle calls him out. Yeah you know essentially calls him a villain and a menace and how you know Tupac lives now was regarded by police because like it won’t make any sense to you if we tell you that you know he eventually goes to prison and guards were messing with him or whatever and his attorney like they treated him terribly in there and we all say like why the police did not like that dude we needed to fill that gap in. So yeah I mean now I think that was like a really important part of the narrative.

S5: This is kind of a behind the scenes making the sausage you know this process but you know the way that we’ve done it originally was that the series would start the way that it does now with kind of this type zoom in on this moment in Tupac life.

S6: Right. And then the idea was then to do a similar kind of thing with Biggie. We’d hand off an episode to it made sense then to kind of switch turn the camera to Biggie and something similarly tight in like the handoff between the episodes Joel was sort of talking about some of this kind of police stuff basically. But it was a mention in a much larger kind of more plot driven narrative. And so together Joel and our editors saw a chance to give this to kind of slow burn treatment which was to take this nexus of all these different issues and focus on that. So it’s not so much about any individual but it’s kind of about ideas and threading these ideas together around the relationship between police black communities and hip hop music right. So I’m just saying that like this episode was originally going to be a turn towards biggie. But in classic slow burn fashion it was like No let’s take a step back and look at a bigger idea. Yeah. And then we can come back around to Biggie. Yeah. So stay tuned stay tuned.

S3: I guess eventually you eventually do. He’s part of the story. It’s very much about this time. And so yeah you mentioned the Dan Quayle sort of shot out is this Ronald Ray Howard case basically the first time that Tupac got national attention or was sort of his you know celebrity at that time.

S4: So I think if you were a rap fan that you already knew who Tupac was if you were somebody that watch ABC Nightly News or NBC Nightly News that might have been the first time you heard of Tupac. Yeah. Oh this outrageous case where this Houston teenager kills a police officer or a state trooper. And he was listening to rap music. Well that might be the first time you heard a Tupac and he sort of you know resonated nationally. But if you had seen juice. I mean if you had heard I get around you already knew who Tupac was. Yeah. And so yeah in the popular imagination of a lot of particularly conservative politicians he was sort of like this you know public enemy number one you know in some ways because yeah I mean like if you listen to his music at that time and only rap fans probably were listening to Tupac at this time. There’s so many references to police brutality police abuse structural inequality all these things that are running through his music. This is the music that he got his career started with. And so like yeah they pulled this little thread out of the songs you know talking about responding to police brutality and police abuse. Yeah. It made it real easy campaign against him and turned him into the sort of this poster boy for black pathology right.

S1: Yeah. Was he on the radio at the time or now.

S2: Yeah I mean because so like I mean I was a teenager then so I heard Brenda’s Got A Baby. I’d heard holler if you hear me.

S5: I know all that stuff through your MTV Raps. Yeah. Young teen perhaps came in eighty nine. Eighty nine right now. So that’s kind of how I knew it was all through videos the radio where I grew up wasn’t really playing hip hop like that.

S7: Yeah yeah. It’s kind of crazy right. Because that’s another thing we talk about like NWA blows up in this episode and it’s not on the strength of like radio play because they can’t play NWA you know. I mean like there were there weren’t even outlets like growing up in Houston. Houston didn’t have a radio station that regularly played hip hop until I was in middle school. And suddenly like 1991 92. Yeah. And so like it was really tough to get access of the sort of stuff that you could only get it through Yo MTV Raps Or yeah maybe college radio station if you were lucky enough right.

S5: Yeah yeah. And I remember being super confused not super confused but a little thrown by NWA because the only NWA video that I remember you on TV rights playing was Express Yourself.

S8: Right. And that’s like yeah. As adults we did. Yeah yeah. Dr. Dre Yeah.

S6: I don’t smoke we beat his ass and it’s like this like dance and but there’s these dudes who had dressed up in this very like they’re sort of signifying on gang culture and gang dress and whatnot. Yeah. Music is very positive not the same gangs can’t be positive but I’m saying like. But then there’s this whole other image that I was hearing about around NWA and then their names and I was like those two things don’t line up but it just goes to show that when you take the Internet out of the picture you really do have to kind of do it right now very different sources you know.

S7: And I remember when NWA was out and I’d heard expressions of when I was a big fan of it I was like oh I could be into this. You know I mean yeah. And then I just remember what that was like a turn around like 89 90. And as a kid you know my parents weren’t gonna allow me to go to the music store and buy that. But I had friends that had it and it was just something like that was you know subversive about their music you know there was something like oh they’re bad but like there was an active campaign to make that true both on their side and on the people that it was advantageous to make them you know public enemy is essential.

S3: So yeah that goes on to my next question I’ve just like people who have memories all the time. I just remember bits and pieces right. Like again like you remember what you remember about NWA and all that. So what was something surprising during the making of this episode that you learned.

S5: I will probably be saying this for the rest of the series when we do these no one thing is surprising in itself but it’s the level of information like I kind of knew about runaway Howard story even in real time it was sort of in the background. Yeah. And I knew about bits and pieces of this.

S9: But again why were you at the time. Yeah I was in D.C. I was in high school and listening to all different kinds of music including hip hop.

S8: Yeah but also a Slate Plus the kind of stuck sub thread is going to be my lack of love or W which is not true it’s gonna be clear this is where you get to clarify but is it like anything that about Tupac.

S9: I wouldn’t pay attention to actively I wouldn’t have I wouldn’t have I wouldn’t pay attention. And so like any of this stuff where Tupac may have been implicated out of been like I don’t care. Yeah. Music So I guess what I’m saying is that like it’s less that it’s surprising and more that it’s a depth of knowledge and a depth of understanding and again having all of these dots connected. Yeah and not just connected like conceptually you couldn’t really see the handoff. I mean the way that Joel sets it up. Yeah I can agree up to a certain point. Even like through the cop killer thing no one could really draw a direct connection between rap and there’s violence even though cop killer wasn’t a rap song until the song Soldier’s Story. And so like yeah I guess that’s true because it’s true that like a lot of I was so used to rap being blamed for so much that for someone to turn a light on in a room and say that may be true it may have gotten blamed for a lot of stuff. But if you look at the actual kind of timeline no one had really connected it until this song. Yeah.

S2: You know obviously Christopher’s working on this and we ask him to pull like a lot of tape and a lot of audio. And so like every day like he’d be like yo have you heard this. Have you heard this like it was like a new discovery of all these like really interesting and like fascinating like interviews of rappers and other people talking about that moment and about you know police brutality and you know we covered the Rodney King case in this episode right.

S7: And like you think you know everything that is going on in like what the climate was then. But then when you revisit it it’s like oh all of this is the antecedent to black lives matter. Yeah you know I mean and like in that way like this is sort of like the slow burn piece like talking about something that seems familiar today. But like these issues have always been with us. Right. So yes the memories I have of it you know back then man is just kind of like Christopher like I was in middle school so I would still I still Freetown. Right right right right. So I did. I had even less knowledge you know.

S2: I mean like I didn’t run away Howard grew up 20 minutes from where I live. And you told me before we started researching on this I would never have known that I would have totally forgotten about the circumstances where it was from. That was like a case that just sort of faded into the background. Right. So yeah like everything was sort of like a revelation to me in that way. Thinking back on it I was like all the music I was digest because I really got an ice cube hard. MARTIN You know in early 90s whatever and I was like oh these songs they’re actually talk about how bad the police are. A lot of them about like how like how they hassle people and first you think as a kid at least for me I mean I will speak for everybody as a kid you think why would the police mess with people for no reason. Yeah I know you think oh they must have been doing something you know. Yeah but like they were actually trying to tell us like yo like the overpolicing our communities are just him enough people for no reason and you know just coming through doing these mass sweeps or whatever and you know looking back on it now I’m like oh it makes sense. Like how things ended up the way that they did. But you know I just sort of took that for granted as a kid.

S6: It’s he makes a good point that like in some of the tapes that I found especially listening to all these interviews that people were doing in the late 80s early 90s with NWA and all around they’re controversial Yeah and whatnot. Were they talking about it all. Yeah yeah. And you hear NWA speaking for themselves people interviewing the group together and you’ll hear like Dre or Ren or even ice cube but I think there’s one bit of tape in particular where it’s M.C. Ren saying we’re reporters we’re not trying to promote gang violence people say it’s what we’re doing. That’s not what we’re doing we’re telling it like it is and we’re reporters and it’s really I’ve been thinking about that actually a lot lately and really thinking about black media and like the creation of black newspaper is in the work of Ida B Wells and whatnot that like community is recognizing that if we don’t tell our community stories through our voice and with our kind of lens no one else is gonna do it. And so I’m not saying that that’s what NWA saw as their mission but it wouldn’t be surprising if they sort of realized instinctively that what’s really happening on the streets is not being told in a way that feels true and right and real. And so we’re going to tell it our way which is exactly like the reason that black newspapers and whatnot were created to tell the story from a sympathetic inside perspective.

S7: Yeah well I mean it is even in the language we say L.A. race riots right which is like you know like black and white people in the streets fighting each other whatever it was like more complicated than that. If you listen to that music you get a sense of that complication of that narrative. That’s not something you may have read in The L.A. Times which no offense. I don’t know who knows what the L.A. Times said in 1992. You know every in every single story but I doubt very seriously that they were echoing the stories that NBC ran an ice cube and even Tupac were telling.

S5: Well that’s right I mean even listening to again some of that television coverage of the riots.

S6: Yes. And to a lot of the month you hear the way that these reporters he’s voice over. I don’t know if they’re black or white. You are talking about the community. That’s true that they’re covering communities that are on fire where there’s violence and looting and all of that. But just the language that they’re using is so not sympathetic. It’s so not compassionate. And this has them covering a massive event that’s getting international attention. Imagine just the like day to day practice just watching people’s asses in their community. That’s just not going to get that kind of cover. So anyway it’s true like what she was saying about going through all this stuff you asked what’s surprising and I’ve forgotten already about initially encountering a lot of this video footage of the riots. There’s some video footage that I found of people looting and it’s all white people.

S9: And the reporter points that out that it’s like all whites looting a lot of these places and of course we know that wasn’t the popular image. The riots. Yeah.

S2: When you talked about something surprising. I had actually forgotten the cop killer was a heavy metal song. Like the narrative around that song was so successful in media and in politics I was convinced in my memory the cop killer was a rap song because he had done it right. You know and even thinking back on it I never even heard the song until we listened to it for this. Yeah. I mean I see is you know respecting the game.

S7: You know you got to love what you’ve done and did for the genre but that was not right. Like even back then I was like wow this is nuts. Old people rap you know that a really flowing you know my back. And he’s an O.G. in the game when I get I want to have utmost respect for iced tea o come out but you know it wasn’t a song I was interested in I was interested in the response to it.

S2: I was not interested in the song itself. And so because of that I was like oh they mad about the song and they’re mad at this rapper. It must be a rap song and that totally got lost. Yeah. So did you listen to heavy metal when you were kid. I was an RB guy you know and then I’d slowly but surely like gotten to hip hop and I think it probably started like real for a tribe called quest but I have no statistics to back this up but I did listen to heavy metal and hardcore music and a lot that kind of stuff.

S9: And I think that in my mind calculus is so solidly a heavy metal song like Because I hear that like the way that song opens with ice t screaming cop killer. Yeah. This was also this moment where I was taught talking to a researcher Sophie about this. She’s younger than both of us so delicately so significant that there was this moment a long time ago when hip hop and hardcore music were really trying to dance together more like in the late like early 90s judgment night and all that kind of stuff. Of course there was walk this way but it’s a say.

S8: This was after Aerosmith. Okay this is after that.

S9: That was like a kind of one off extremely successful but that was like straight up rock and roll this bar rock. This is like heart like biohazard and helmet and what not like math metal and hardcore music and that kind of stuff. So then ice t jumps into the heavy metal game and it was like people who are fans of both of those genres were like fuck yeah you know I mean I like to great taste that taste great together. I think you say you’re a fan. Yeah. I mean body count as heavy metal goes wasn’t that great. I was just going to ask you. I was like Oh no really it’s fine it’s pretty generic sounding as it’s like heavy metal goes yeah.

S3: I mean there’s much better but yeah. So like all that contrast is sort of had an impact on the music industry at that time then too.

S2: It’s arguable that what happened to iced tea you know forever changed the dynamics of the music industry it created what is today the world’s largest record label because ice tea was on Warner Brothers Records cop killer accordingly and as we cover in this episode you know gets all these police groups law enforcement groups to rally against them and call for boycotts and all this other stuff. And eventually ice tea under pressure decides all right I’m going to take that song off my album yeah but then it just you know people like hey look at these record labels are promoting this sort of like terrible music that encourages people to kill cops and that’s ridiculous. And it continues on with you know two parks album you know Apocalypse Now and you know people using the rap made me do it defense as we call it in this episode. So as a result you know Warner Brothers they’re like We gotta get out of this game. This is just becoming a liability for me. And they sell off their half of Interscope Records which at that point was the home for death row. Mm hmm. And so they sell off their portion of it and like a few months later. Death Row aligns with I think universal or something like that like a hundred million dollar profit like just months later where somebody had said this is an albatross we can not be investing this game is going to drag down our bottom line just a few months later that whole theory is blown up in today that is the you know the biggest music label in the world. Right. Like just lost that and you could argue it started with cop killer. So like even that history itself I’m just like Who knew right.

S5: Yeah yeah. And over and over again it comes to me it keeps coming back to it’s like imagining this moment before rap really blew up that like yeah I think as Dan chance that gets at this a little bit and a couple of the folks we’ve talked to but like really remembering that in the larger scheme of things the most successful rap artist even if this song or that song isn’t a rap song. Rap Artist which I think is criticized. Yeah. Was there a liability in this sort of like cutting your losses thing like we’re making billions off of like Mariah Carey and whoever they like.

S9: But you know like the Rolling Stone whoever their biggest artists are. So it’s worth it to cut loose at the time an artist who is just there probably making create a few million. Yeah but like we can afford to let that go. It just a reminder of where the industry was. You know what I mean where rap was if it hadn’t just about to cross over into like this wouldn’t happen with like Kendrick. Now what. I don’t think so. Yeah I mean it’s a different because it’s all kind of apples and oranges because artist can kind of make their I mean. Yeah. Like streaming on the Internet.

S7: You know things have just sort of like you know been fragmented in such a way that it’s not quite the same thing. But yeah you’re right. Like people could still see the value in him and they would probably be willing to stick with him. Right.

S2: I mean Warner gave up its stake in Snoop Dogg. You could make a case that Snoop Dogg is the most famous rapper of all time. I would listen to that argument. You know I mean and they gave up the financial stake in that too. That’s. I mean that’s a huge loss.

S3: So OK. So for the Slate Plus episode we’re going to go into the rap made me do it. Give me a little bit more. We have an interview with Andrew Dennis. Right. So can you talk a bit more about who she is. Yeah.

S2: So Andrew Dennis is a law professor at the University of Georgia and she co-wrote a book called rap on trial which is all about the many ways in which they’ve criminalized rap lyrics from the rap made me do it defend to people just you know being arrested for even their affiliation with rap. So like let’s just say somebody was you know committed a crime and the police would find a rap notebook right in their car. They they’d try and connect that to their crime or whatever was just sort of fascinating like you know I’d never put all that together and then we found her because of the New Yorker had quoted her in the Takashi 6 9 case. And so that’s actually how we found her. We like huh. Nobody was doing that. Right. And the reason she came to this work is because she had a client who’d been charged with homicide and they used the music that he had recorded as a rapper against him OK. And on its face that sort of absurd because like if you commit a crime you know like let’s deal in the reality of the crime and the evidence against you not what you write down. So that’s basically her whole thing. That’s what she’s talked about and it’s some. Yes it’s sort of fascinating that people are able to do this and I’ll never forget one of my very first stories in Tampa I was cover story about a kid who was living in a neighborhood and he was walking down the street and he was reciting the lyrics to little boozy touchdown radio or something like that. I think that’s the name of the song. And they arrested him for reciting lyrics in public. Well yeah because they thought he was going to be violent. It is an obscenity charge and it’s like that would never happen with any other genre of music and that’s essentially the case that Andrea Dennis is making that that’s not something that would happen with rock music. That’s not something that would happen. You know if you’re reenacting an action movie line or something like that. But like rappers are not given the space to be artists which is something Christopher mentioned earlier. And so yeah so like that’s why we had her own because she really talks about this time and connects it to what they were doing the runaway Howard in Texas and his trial.

S5: This idea of black performance in the space that black artists get in lots of different kind of genres and public displays and performances. I mean just black men being their beautiful black selves on the corners of our communities are suspect. It can be very jarring to America to see that. Yeah.

S6: To see these sort of very rich confrontation or sometimes displays of blackness and especially I think black masculinity to say nothing of black femininity that stuff is super interesting to me.

S9: The space that rap artists get to be performers can as again as we said we’re talking before about my love for other kinds of music including music that is also problematic. Yeah. And then rappers talk about like what’s actually happening the impact of in this particular instance of policing the impact on that has on black life real black life actual shit. Mm hmm. And suddenly we have problem. Yeah yeah.

S2: And I think one of the things that Andrea talks about that I never actually thought about too is that I don’t know the extent to which even in this case Ronald Ray Howard’s attorney he insists that he’s like 100 percent that rap music influenced runaway Howard to kill this trooper Bill Davidson. And he says that he doesn’t believe that about rap music You said you know if you have one hundred cases maybe in you know half a percent chance that this sort of person could be affected by it. But even still you can look at it sort cynically but Andrea’s point is that these sorts of cases are being made amongst people that have no familiarity with hip hop ended up itself barely black people. But then hip hop in and of itself did like horribly ignorant of the art form and so it’s really easy to just make these guys seem like thugs gangsters you know remorseless killers or whatever. And didn’t just point to these lyrics are talking about. I mean they’re telling stories they’re telling stories and you can also say they’re reporting the news right but it doesn’t necessarily have to be a reflection of who they are as a person. But that’s what these prosecutors and whoever are doing to like is a very cynical sort of defense a lot of it is based on like ideas they have about black pathology but also just like really jarring ignorance about liking hip hop and rapping in black people to end its relationship to black people. So yeah I mean it was just kind of like amazing just like when you think about it’s like oh this is absolutely insane. But it goes on all the time and it’s still going on today.

S3: Yeah it is still going on. I mean you mentioned that because she’s 6 9 a switch for people I don’t know he’s a rapper in Brooklyn who went to court and they started using his lyrics I guess in his music and saying that that’s his reality.

S7: Yeah they were connecting him and I mean he said he was a member of a gang. Right. I mean so in all fairness but they’re not giving him the latitude that they would give anybody else under those circumstances like they wouldn’t be like where you were an actor when you played a gang member in this way like this. This is represent. You know this and this and that. You know that you wouldn’t it would seem silly right. Yeah but like rappers are not given that sort of space in the criminal justice system so yeah I mean shoot Bobby Shimada man that’s another dude who got taken down over the same kind of shit. You know it’s really scary. You know I mean I don’t even think about it like that but it’s the kind of thing that goes on all the time it’s just like this like it’s like I’m going to do anything about this criminal justice system but you.

S5: And there’s the Jamal Knox case that I don’t know where things stand with the case now I was going to the Supreme Court. What does that mean. This is the case.

S6: He was charged with terroristic threats and witness intimidation with prosecutors alleging his lyrics targeted specific police officers in Pittsburgh and Killer Mike Chance the rapper Meek Mill and maybe some others filed an amicus brief in which they wrote this very beautiful kind of timeline of rap music trying to basically make the argument that Joe was talking about now which is that like this is an art form it’s a performance medium. You know it’s it’s like theater it’s like novels it’s like that which isn’t to say that it’s not talking about what’s real. But you can’t it’s on a one to one. Yeah.

S10: OK. So let’s listen to that Andrew. And I to you.

S11: My name is Andrea Dennis. I’m a law professor at the University Of Georgia School of Law.

S12: I currently teach and research in the areas of criminal defense evidence Family and Juvenile Justice and I’m co-author on the forthcoming book rap on trial race lyrics and guilt in America.

S13: From the new press if you’d even had a client who’d been charged with homicide too they used rap lyrics as evidence against him is that correct.

S12: Yes. When I was an assistant federal defender working in Baltimore Maryland My office had a client who had been charged with homicide and during the course of the pretrial proceedings and sifting through the evidence we realized that he had written some rap lyrics and recorded some C.D. this was quite some time ago and so we we were worries that the evidence might be used against him in that case. Ultimately that case resolved itself. Short of trial and so we didn’t have to confront the issue but it certainly was a concern for the client of the office at that time. I didn’t realize that the issue was maybe more widespread at the time it was not until a few years later when I entered academia that I learned of another case and then that began the snowball effect.

S14: I looked around and began to uncover lots of cases and realized this was a larger problem than I had anticipated and so that’s what led me to write the article.

S15: Yeah I mean that’s sort of the thing right because putting it all together that must have just felt like oh my god like you realize like all these cases that you may have heard snippets about over the years and it did it all just sort of come together all at once like as you’re doing this research essentially.

S16: It did. It almost was a little bit like that a moment of shock when I started researching in West law just typing in those first searches and cases kept popping up. I was really taken aback. I didn’t realize that it was actually a thing.

S12: I was quite bothered that this was a strategy that prosecutors were endorsing. And then when I found training manuals for prosecutors that literally said this is what you should do so that you can try and show the true character of a defendant. As basically a criminal wearing a do rag and throwing a gang sign.

S17: I was quite pissed off I guess would be the the polite way.

S13: Yeah. No. It is appropriate. And again this is only happening with rap right. You mentioned several times in the book that like this isn’t something that’s done with country or even rock n roll. Correct.

S12: Correct.

S16: We have researched other musical genres other fictional musical genres most obviously country and heavy metal which have common themes along with rap including violent imagery and themes of homicide and we only see it happening with rap music. It’s not the case that we have found any other situations in which country music or heavy metal are being used in the same way.

S13: I mean the only thing that distinguishes rap in this way is the fact that it’s black and brown people making the music. Is that fair to say.

S12: I think the only fair distinction between rap country and metal music Yes is that the primary producers of rap music are young black and Latino men.

S15: Let’s go back to the start of this right because you mention in the book we talk about the derrick Foster case in 1991 for people who were unfamiliar with that case you might kind of walk us through it.

S12: Sure.

S16: The derrick Foster case from 1991 is the first case that we have been able to identify as using and analyzing rap lyrics as criminal evidence Mr Foster was a gentleman who was from the Los Angeles area and while he was taking a train cross country from Los Angeles to Rockville Maryland he was stopped in Union Station in Chicago by DEA agents and those agents claim that their attention was drawn to him because he had some suitcases that kept falling over when he was exiting the train and he seemed a little nervous. And so they approached him and when one of the suitcases again fell over a puff of white smoke came out they asked him whether the suitcases were his and he denied that the suitcases were his. And explained that he was taking them off the train for another passenger although there was no other passenger that they could identify that the suitcases might belong to.

S14: He was also carrying a bag and they asked whether the bag was his and he claimed the bag is his own. And they asked to search the bag and allegedly he consented and within the bag they found what they believed were indicia of drug distribution and as well that there was a blue notebook that he had written some lyrics in. And so they arrest him because within the suitcases are illicit substances.

S18: And during interrogation he supposedly acknowledges that the lyrics were ones that he had written that maybe he knew there was something in the suitcases but he wasn’t sure what he was just delivering them the lyrics themselves talked about drugs and drug dealing in the first person to the agents they indicated that he had some knowledge of how drug distribution works.

S12: There was nothing that facility that would tie the particular lyrics to the suitcases or what he was allegedly doing on the train. But at trial the lyrics were introduced to demonstrate that he had knowledge about how drug distribution could occur. He had knowledge about different drugs all in support of the government’s theory that he was transporting the drugs from L.A. to Maryland and that he was a drug trafficker. And so that’s the first case we found a case in which the government was using lyrics the defendant Mr. Foster wrote in order to demonstrate his knowledge or his intent or his mindset with respect to drug distribution the timing and the place of this case and the use of rap lyrics as evidence could not have been a coincidence right.

S15: I mean we’re talking about 91 so retired of Rodney King we’re talking about coming out of the you know the fuck the police there and it’s an. You know this kid is out of L.A. that doesn’t seem like that’s all coincidental. Correct.

S16: Correct. The fact that the foster case although it was adjudicated in Illinois in federal court.

S14: Right the origins of the case are that he gets on the train in L.A. and he’s traveling cross-country to Maryland. And so we don’t find it happenstance that somehow L.A. is involved in this. And given the fact that around that time is when gangsta rap was beginning to grow in popularity around that same time as when drug distribution was becoming a larger issue within the L.A. area in particular cocaine and crack and around that time various states and the federal government the Gan to be concerned about nationwide trafficking. And so we don’t find it surprising that there are origins in L.A. of this particular phenomenon of using rap as criminal evidence for it.

S15: I mean at this time NWA and gangsta rap becoming sort of this voice of protest that you mentioned you know its popularity was a wakeup call to police. Can you talk about that a little bit about the idea that you know oh now law enforcement is aware of the idea that there’s people making this really graphically violent music that some people would just considered anti cop right.

S18: Right. I mean if we recall right the origins of hip hop and of course rap within that really were a pushback to disco music right this sort of you know lots of fun and partying and celebration but a failure to acknowledge some of the severe dysfunctions that were going on in large urban environments right particularly South Bronx New York.

S19: But were those same problems were happening nationwide in major cities including L.A. so literally right. Everything that’s happening in New York with the birth of hip hop and then it’s ultimate development over the next two decades you would imagine that the exact same circumstances were happening in L.A. and we talk about that in the book what was going on in L.A. beginning in the 50s and then the 60s and the 70s and what led to the rise in or the invention of gangsta rap.

S18: And so it’s happening on both the East Coast and West Coast it’s happening around the same time frames and then you know by 1988 you have ice cube NWA releasing fuck the police in 1992 you have ice t in body count releasing cop killer. And so it’s at that point that law enforcement and government attention is really drawn to gangsta rap in particular.

S17: And so it all fits within the same both geographic social developments.

S18: It all fits within the same temporal timeline social developments and then that by the time around nineteen ninety one in 1992 when we’re really seeing a focus among artists on police misconduct and police brutality and overpolicing and this music is coming to light and law enforcement officers on both the state and the federal level are recognizing what they consider to be a threat. It makes sense that it’s around that time that there begins to be surveillance and policing of artists in an attempt to suppress what they were talking about.

S13: Right. I mean in some ways Daryl Gates the LAPD and other police departments within that region they’re sort of responsible for that sort of response from NWA and rappers and people within those communities right.

S15: Because I mean you talk about this in the book a little bit about that overpolicing and what they did to those communities during that time.

S12: Yeah I think it’s absolutely right that one of the explanations for the rise in gangsta rap is the overpolicing the zealousness the brutality with which Daryl Gates as chief of police and the LAPD more broadly were policing communities right.

S14: So if we know that for decades these communities had been successful and life was good.

S18: And we know that as industrialization happened and segregation and then desegregation. And we know that communities were losing jobs and black families were being harmed by the loss of these jobs. Those communities were falling into disrepair and crime began to rise.

S14: Right the response was not a let’s deal with the social problems the loss of jobs the deficits in education the difficulty with housing the response by law enforcement was policing right. And extra zealous policing. And when the communities sort of began to fall off and gangs arose and drug distribution arose as a way to deal with the economic and social inequality Daryl Gates made his choice and it was really an aggressive military style tactic. And now now what you have are young black men in those communities right finding a voice for themselves through rap as an art form and then vocalizing what they are experiencing it’s not just the criminality and the dysfunction in the community.

S17: It’s also the overpolicing. Right.

S15: And one of the first provocations is fuck the police. Good. I guess the better way to say it is that they really took that as a provocation like that mobilize them and the law enforcement community and all sorts of ways correct.

S16: Yes. I think law enforcement took NWA as song as a frontal attack. There were law enforcement as individuals who expressed opposition. There were law enforcement as agencies sort of nationally organized law enforcement who would write letters to venues who would write letters to producers and sellers complaining about NWA and any bookings or shows.

S14: And then there’s the infamous letter from an FBI agent to Time Warner complaining about NWA and the fact that in 1988 when the song had been released that there had been more than 80 law enforcement killings nationwide and that this song was essentially operating as a threat to law enforcement and Time Warner shouldn’t be putting it out.

S20: Right. Right. And that really sort of crystallizes the idea that you know sort of animates your book that they actually thought that rap lyrics could compel black people to be violent against them.

S19: Yes I think law enforcement was concerned twofold one that this was slanderous of their their character and what work they were doing. I think they saw themselves as doing good work protecting the community and and helping people albeit that there might have been some renegade officers and actions. And I think they thought that this would encourage other people to engage in violence that it would incite people to respond against law enforcement in some violent way.

S15: You guys had this beautiful sentence in the book that I loved and I want you to kind of explain it. You said white America’s response to fuck the police was schizophrenic.

S19: Can you talk about that a little bit to White America’s response to fuck the police was schizophrenic because on one hand you had again law enforcement on all levels vocally objecting to the song undertaking efforts to suppress what NWA was talking about and what other artists were talking about and on the other hand you had consumers young individuals really embracing the song really embracing the music and whether it’s because they were being socially conscious or whether it’s because they just wanted to enjoy the music that they saw as rebellious whether they really just for entertainment value liked the music or whether they thought there was some realism to it and they could get a sense of what was going on in these spaces that were very different from their own lives. White America really loved the song. I mean at the time it sold well right. It is now commercially acclaimed it is an iconic song. And so that’s the schizophrenia that white America had on one hand you had one segment which really was opposed to the song thought there was no good value no purpose and on the other hand you have a group saying that this is really a good song we’re putting our money behind it we’re buying it we’re embracing what NWA is doing and talking about provocations that I mean in not very long later until a cop killer comes out which isn’t even a rap song.

S20: I mean it’s a heavy metal song but it got categorized as rap but in the course of your research could you find any other music or any other song that was more of an inflection point in terms of prosecutors or police and police like being antagonized by rap music.

S16: No I think between NWA fuck the police and then cop killer about a handful of years later which again you’re right it’s a heavy metal song that because it’s linked to ice t who was quite well-known at that time. It always falls into the rap hip hop category and that’s actually not correct.

S17: But I think between those two songs we haven’t come across any that provoke law enforcement response as much.

S15: There’s all this suggestion that hey this sort of music could compel people to act violence against us and nobody could point to any example to that point. But then you have the Ronald Ray Howard case which is unique not only because you know it was one of those first cases that somebody pointed to music is like inciting violence. You know as a legal argument but also because the defense attorney made the argument on their behalf. Right. Like I was like it was like a really unique case in that way.

S19: Yeah. So Ronald Ray Howard’s case was unique in two respects one it was the first time that rap music was very openly and apparently being blame for an actual homicide and of course the victim in that case is a is a police officer. And so we had before that occasionally seen cases in which heavy metal music was blamed for either suicidal or homicidal behavior or by a defendant or an individual. But this was the first time we had seen rap music being blamed for similar type behavior. The other interesting fact about Ronald Ray Howard is that it is his defense attorney who is bringing out this argument and we have seen again similar arguments with respect to heavy metal either in criminal cases or civil wrongful death lawsuits. The claim that the music incited or motivated or made the defendant engage in the in the conduct and most of those times involve the prosecutor raising the argument. And so here Ronald Ray Howard’s case becomes interesting because it’s now the defense attorney raising the argument and I can understand in retrospect why the defense attorney would have raised the argument the argument was raised during this sentencing phase of the case. So Ronald Ray Howard is convicted of murder. And the question is before the jury what sentence should be imposed. A period of incarceration or the death sentence. And so in trying to argue that Mr. Howard was not as culpable or it was not his fault or offer some explanation for why he killed the officer rather than just that he’s an evil irredeemable person. The defense attorney was looking for an explanation and the explanation became that he had been listening to gangsta rap music that he was addicted to the music and that in particular on that day he was listening to to parks to Apocalypse Now and that is what motivated him. So I can understand why but it is interesting that it was the first case in which we see rap music being blamed for committing the conduct. And we see that a defense attorney is using it but he is trying to mitigate the possibility of a death sentence and it obviously didn’t work. Mr. Howard was sentenced to death and ultimately executed.

S15: One thing that’s sort of fascinating I know that you reviewed like over 500 cases where rap lyrics were miserable is evidence which is obviously a lie. But reading throughout your book like Tupac comes up a lot in your research at least this Tupac like come up as much or more than any other rapper in terms of lyrics that were ultimately used as criminal evidence.

S19: So I think one reason that Tupac comes up so much with respect to this phenomenon and in the book maybe is not so much that defendants are referring to Tupac or cases are alluding to Tupac but that Tupac had such a range. Right. On the one hand he is a gangsta rap artist who is for a period of time aligned with Death Row Records and should night which has a violent reputation. And so he really embraced the gangsta rap persona the lifestyle thug life. He he glamorized violence and excess and lavishness. But on the other hand he really had range. He also explored themes of police brutality and misconduct and the drawbacks of thug life. And he also obviously had songs that touched on family dysfunction and other issues. I think also he comes up because in a weird twist of events or circumstances prosecutors and police officers seem to think that he really was only a single minded gangsta rap artist who was with Death Row Records which is quite notorious. And so they like to ask the question or suggest Well if you’re a gangsta rap artist right. Remember Tupac. And remember shag night and all the the horrible things he’s alleged to have done. And this defendant here right this is the world. He’s trying to inhabit. And so he must be like them. And so it becomes an easy reference point Tupac and should night and death row records all bad. Defendant here writing gangsta rap clearly bad must be guilty. And so I think police and prosecutors like to trot them out as reminding jurors and reminding judges what is so bad about gangsta rap. I think also from our perspective right. Tupac goes to jail. Mm hmm. And even though the charge there was sexual assault and it wasn’t necessarily the case that his lyrics were used directly against him. Right there’s probably certainly some effect that his persona his entertainment persona had on the case.

S15: Given your work given your research is it fair to say that even even today like to parks influence over this is like sort of hardened the perception that people like that prosecutors and police have of what rap and rap lyrics today like the rap in rap music are all pathology.

S19: Yeah I think Tupac helped solidify the perspective of police and law enforcement that gangsta rap is violent gangsta rappers are violent gangsta rappers are living their their lives out right. I think there’s probably also this common perception that Tupac was just a thug. Right. And yet we know there are so many more layers to him than maybe police and prosecutors are willing to recognize.

S18: But I think that sort of solidified their perspective on gangsta rap. And I would say of course that the relationship between Tupac and Notorious biggie right probably also solidifies this notion that there is violence there is gang behavior within the gangsta rap world that they haven’t updated their mainframe to consider the context of this at all then.

S15: Right. And when I say they I mean police and prosecutors and government I think that’s right.

S19: I don’t think that fast forward you know almost 20 some years later that police and law enforcement have been willing to recognize the range the breadth the diversity the genius of Tupac and the rest of the artists around that time the social commentary the political importance of what was being said. Right. What they were talking about is both timeless and timely. Right. What they were talking about in the late 80s and the early 90s was reflective of past history the black experience in America the black city experience in urban environments.

S18: Right. It was representative of their experience at the time. And today it is still representative of what’s going on. Those songs still have the same effect and relevance today.

S19: And so law enforcement and government seems unwilling to recognize the importance of that work in terms of social commentary and social justice and political commentary and they’re unwilling to recognize that there has been a significant commercialization and commodification of rap music generally but also even gangsta rap. And so when we talked about the schizophrenia surrounding fuck the police and cop killer that white America had that still exists today gangsta rap is so highly commercially successful. And what you see are labels and producers pushing a certain strain of it right. All gangsta rap that glamorizes violence that you know talks about excessive lifestyle. Right. And they are far less interested it seems in the social commentary aspect. So they are failing to acknowledge that an artist an aspiring artist may say you know the way I get rich is I tell the same story I use the same formula that labels want and that makes me money.

S13: I mean you guys talk about in the book again that essentially prosecutors have no understanding of rap.

S19: Quote Even at the most basic levels Yeah I think it’s a fairly broad statement and we quibbled with that statement do we want to be so broad.

S18: But I think it is fair to say that across the board prosecutors do not have a deep or thoughtful or an educated or sophisticated understanding of rap music its history the poetics that are involved in constructing lyrics the various themes that arise and some of it is due to reliance on the so-called law enforcement expert but they’re looking to their police expert who also supposedly knows about gangs to try and explain this to them and then explain it to the jury and I think even in some instances you’ll have experts admit I don’t really listen to that music I just researched it for this case I don’t like that music I just researched it for this case and that in itself is a basic problem.

S17: And then when prosecutors aren’t savvy enough or expert experienced enough or knowledgeable enough to even question what their own witness is telling them that’s a problem.

S15: The use of gang experts in trial at these gangs where they’re mostly just cops that happened to work with gangs in their jurisdiction right.

S19: Yes that’s correct. A law enforcement gang expert is usually obtaining his and it is usually male but not always is obtaining his experience and his knowledge from working the streets and from what they would call interviewing gang members or former gang members. And that’s not to say that expert knowledge cannot be obtained that way but it becomes a little suspicious because of the failure to have a broad based knowledge of the information. It seems to be very insulated and very isolated. Does Biggie ever come up in any of this stuff to my memory if recollection is correct. It’s rare for biggie to be invoked.

S18: Now I can recall case out of Baltimore. A few years ago in which the government is alleging that the defendant associates with various gang members and that an individual was killed because of gang behaviors and concerns. And as part of the evidence in the case a picture was presented to the jury and the allegation is that the defendant is in the picture with some other individuals who are gang members. And it actually turns out that it’s Biggie and Craig Mack and another individual in the picture. It’s a 20 year old picture that for me that neither the police or the prosecutor understood that just happened to be on one of the defendants phones because they liked the picture wasn’t a current picture and wasn’t gang members. So that’s sort of one interesting way in which piggy did arise. But the government was mistaken.

S13: Right. Right. I mean hell fuck the police are still getting people thrown in prison.

S15: I don’t think in particularly the Jamal Knox and Rashid Beasley case. Right. Like it seemed pretty egregious that these kids got put in prison over that. Right.

S18: Yes. So Jamal marks and Rashad Beasley are a contemporary version of NWA right. They grow up on the East Coast in Pittsburgh in a community that is you know overpolicing. Right. They deal with even from a young age. Police misconduct and police violence both towards themselves and towards friends and family in the community. And they are aspiring artists. They have been long writing rap music and producing it with varying themes. But they write a song essentially fuck the police and it’s an oh my gosh. To NWA song but talking more about what’s happened to them or in their particular community or to people they know in their community and in the song they identify particular officers who have allegedly been involved in violent misconduct towards citizens in the community. And they talk about retribution towards these officers. And so they’re charged with threats and ultimately convicted and the court rejects the notion that they are protected by the First Amendment that they’re providing any artistic or expressive speech that would be protected right.

S17: That their song is threatening identify particular officers and mentioned particular locations that the officers might frequent. And so the court said essentially that because of the specificity right there cannot be any notion that they were purely engaging in entertainment or political expression. And so what we see right is in contrast to NWA which is concerning the very same matters it’s the specificity that created a problem. Even though it’s still the same similar social commentary and concerns. Right.

S16: And so they’re convicted and ultimately incarcerated and they do appeal the case. The Pennsylvania Supreme Court affirms their convictions and ultimately they petition the Supreme Court to hear their case. Right. This is a great case that we thought would raise directly First Amendment issues. And the Supreme Court refused to take the case and so ultimately both of them serve out their sentences. But this is right. If we’re referencing two decades ago and an oh my gosh to NWA talking about what is both timely and timeless issues of police brutality.

S11: Those men were were incarcerated.

S21: Andrew thank you so much. This was so good. So a fourth or so helpful. I’m so glad we were able to do this. Great. Thank you so much. Care.