(CN) — Should someone’s creative work be used against them in a criminal trial? That was the question presented before the Maryland Court of Appeals earlier this year after rap lyrics sang in a jailhouse phone call were part of the state’s effort to convict Lawrence Montague of murder.
“I’ll be playin’ the block bitch
And if you ever play with me
I’ll give you a dream, a couple shots snitch
It’s like hockey pucks the way I dish out this
It’s a .40 when that bitch goin’ hit up shit”
These words, uttered by the defendant, recorded by someone outside the jail, posted on Instagram and played ad nauseam during Montague’s trial, helped the state convince a jury the 27-year-old Annapolis native was guilty of second degree murder in a drug deal gone wrong.
The case is both a warning and a reminder of how the criminal justice system has used hip hop’s often raw and criminal thematic leanings in criminal proceedings despite the possibility of it unfairly prejudicing the defendant.
In a lengthy opinion released just before Christmas, Maryland Court of Appeals Judge Joseph Getty wrote for the majority of the seven-member panel that the details in Montague’s rap were uniquely probative, or relevant, despite other courts’ nationwide wariness of admitting such evidence.
But between the timing of the recording, three-weeks before trial with lyrics threatening “snitches” like the witness set to testify against him, and the mention of .40 caliber bullets which were used in the murder, the lower court judge would not have been alone in finding the rap relevant to the case, the judge said.
“While rap lyric evidence often has prejudicial effect as improper propensity evidence of a defendant’s bad character, those concerns are diminished when the lyrics are so akin to the alleged crime that they serve as ‘direct proof’ of the defendant’s involvement,” Getty wrote.
His noting of the prejudicial nature of rap further enshrines the concerns expressed by Montague’s lawyer and other defense attorneys since the genre’s rise in the 80s and 90s. And there’s reason for that concern; the use of rap lyrics to paint a defendant as violent can reflect discrepancies within the criminal justice system.
Tyler Mann is the Townson-based attorney who represented Montague at trial. The lawyer took issue with several parts of the rap’s use as evidence, but he admitted the tactic, which involved playing the muffled recording on repeat and pointing to details from the crime that lined up on a whiteboard while it played, was a smart move.
“There was scant other evidence in the case,” he said, arguing the witness had a troubled past, but the rap’s mention of threatening a “snitch” helped create the image of his client silencing a witness to protect himself.
“It was a tough loss,” he said. “The rap was the nail in the coffin so to speak.”
Getty offered a well-researched analysis of why Montague’s words should be allowed in despite other courts finding otherwise.
He cited 2014’s New Jersey v. Skinner in which lyrics in a notebook written by rapper Vonte Skinner were used to convict him of murder. But the state’s highest court eventually overturned the ruling and found the lyrics failed to offer details related to the crime and instead only showed “a propensity toward committing, or at the very least glorifying, violence and death.”
“Because the rap lyrics in Skinner were composed well before trial, and some were composed in connection with a rap label, a weak temporal nexus between the lyrics and the alleged crime cut against their probative value and accentuated their prejudicial effect,” Getty wrote.
But Montague’s rap was different from Skinner’s, he argued, pointing to the “close factual and temporal nexus exists between defendant-authored rap lyrics and an alleged crime, the inclusion of ‘stop snitching’ references.”
While some might first argue the First Amendment could offer some shield to rappers, Todd Stone, a former federal prosecutor turned defense attorney, said that would be a misconception.
“It’s not a blanket right to say whatever you want to say,” the Richmond-based attorney said. Instead, he argued, it’s a matter of Miranda rights, anything you say can be used against you in a court of law.
A balancing test exists, as noted by Getty, for such evidence and it requires weighing the relevance of the words to the way it could negatively and influence a jury without merit.
“Courts have come down the other way; rap lyrics have a common theme that involves violence and snitches and that sort of thing,” he said. “They can be prejudicial but they are an artistic expression.”
In the Skinner case, the New Jersey court found that the balancing test weighed in favor of the rapper, but with Montague in Maryland they found otherwise because of the details and the timing.
But the Montague opinion included a dissent by Judge Shirley Watts, which expressed the kind of concern rappers and Mann expressed.
“The rap lyrics had little to no probative value and any limited probative value of the lyrics is derived by construing the wording of the lyrics in a manner to be allegedly consistent with the offense,” she wrote, suggesting the standard being developed in the majority opinion was to broad and would “essentially permit rap lyrics containing generic references to violence to be admitted into evidence despite the danger of unfair prejudice substantially outweighing any minimal probative value of the evidence.”
“She took more of a realistic approach to what’s happening,” Mann said, noting the judge’s background as a Black Baltimore native might have helped inform her fears about how the case could impact cases going forward.
“These other judges don’t have a lot of experience with that,” he added.
The use of rap lyrics, and the targeting of rappers for what they rap about, is nothing new for those in the industry.
Los Angeles rapper Drakeo the Ruler became the subject of a high profile gang trial which aimed to use the performer’s words against him.
“I don’t know nothin’ ’bout no murders, I don’t know nothin’ ’bout no killers,
The only thing I know is what I know and mind my business” Drakeo rapped last summer as he sat in a jail waiting to go on trial for a 2016 murder he would later be acquitted of due to rap lyrics being the basis for his accusation.
“You don’t have to be involved. You don’t have to know nothing. You just have to be a gang member. But then the twist is that my group is my gang?” Drakeo, or Darrell Caldwell, told NPR during his time inside. “Come on, bro.”
And while Montague was the first time Mann had been involved in a case where rap lyrics entered as evidence at trial, he said he’d seen them used in other parts of the criminal justice system.
Back in 2017 he represented a Baltimore rapper named Young Moose whose lyrics were used in efforts to get search warrants by Baltimore Police Detective Daniel Hersl.
“The raided homes they said they saw my client enter six months ago,” he said of the warrants that rendered searches but failed to lead to criminal trials.
Hersl’s own misdeeds however led to a collection of federal racketeering and other charges which landed the former cop 18 years in jail.
Richmond rapper Black Liquid writes less about crimes he’s involved in and more about his personal experiences more broadly, but he understands the origins of the violent lyrics the genre is most often associated with.
“Rappers are coming from a world where they are in rebellion against a system that keeps a vast amount of people of color incarcerated and ultimately oppressed,” he said.
He pointed to things like the NYPD’s use of a “hip hop task force” that kept tabs on rappers for the sake of eventual prosecution.
“Rappers are guilty until proven innocent,” he added.
The rapper also said the use of that violence and disdain for the system is what has helped make the genre so successful — violence and the fight against oppression are universal concepts.
“Hip hop is the most powerful and popular kind of music in the world but it’s always going to come with connotations of being criminal,” he added.
Black Liquid pointed to rapper Ice T, whose criminal past is well known to anyone who’s listened to his extensive catalog. Last year he spoke to the press about some of that criminal activity.
“We robbed mostly jewelry stores, and we started off not being armed,” he told Entertainment Tonight, detailing how even just a sledgehammer and a mask would be enough to get someone in a stick up to offer the goods.
“Just walk in, ‘Hey, hey everybody. Everybody, please back away from the case. This is about to be a bash,'” he said.
Going back further, the rapper turned “Law and Order: SVU” actor took to Twitter in 2015 to clarify his freedom to discuss some, but not all of his past criminal activity: “the only crime that has no Statute of limitations is Murder.”
And while Black Liquid expressed concern for Montague, and decried the idea of rap being used to incriminate people, he also said part of being a good hip hop artist is rapping about your past in a way that doesn’t get you locked up.
“You have to take yourself seriously cause of the weaponization of that language, it’s not to be played with,” he said, pointing to the hip hop group Wu-Tang Clan which compared an artist’s tongue to a sword and the only way to sharpen that sword is through discipline.
“When you go out and run your mouth about things you shouldn’t have been doing, and you’re swinging at everyone, you’re the one whose gonna get cut,” he said.
Mann, who said he felt deeply for Montague’s family following the conviction, also noted he tried to warn the would-be rapper, like he warns all his clients, about the dangers of discussing his upcoming trial.
“I told Lawrence no less than 15 times not to talk on the phone,” he said. “He didn’t listen to me.”
Attempts to reach the Anne Arundel County Assistant Attorney General’s office were not returned by press time.