San Diego Rapper Faces Life Sentence For Album

MAUREEN CAVANAUGH: Our top story on mid-day edition is the controversy conspiracy charge against San Diego rapper Tiny Doo, the 33 year old sometimes rap artist real name Brandon Duncan is charged, along with 14 San Diego men all alleged members of a San Diego gang. The so-called criminal conspiracy charges involve counts of attempted murder which could result in a life sentence but even prosecutors can see that Duncan did not actually participate in any of the alleged; crimes his connection involves his rap album called No Safety and the hardcore urban street life documented in its lyrics. Here is just a brief sample of the album that we can play on the radio. (AUDIO) MAUREEN CAVANAUGH: Joining us to explain what this prosecution is about is our guest legal analyst Dan Eaton. Welcome back Dan. DAN EATON: Thank you. Maybe we can have someone explain what those lyrics mean. That escaped me a little bit. MAUREEN CAVANAUGH: Well, you know, I think this is a very confusing case for a lot of people on a lot of different levels what is rapper Brandon Duncan charged with? DAN EATON: He is charged with ten counts of violating penal code section 182.5 which says that an active member of a gang may be prosecuted for a particular crime if that person has general knowledge of that crime and is an active gang member and benefits in some way from the gang's general activities - so that's what the charge is. MAUREEN CAVANAUGH: And the charge is conspiracy of attempted murder; does this have to do with shootings? DAN EATON: It does. It has to do with shootings that took place and the argument is because Mr. Duncan, that is his real name, was generally aware of the gang's activity and it's alleged he was an active gang member, and because it's further alleged that as a "gangster rapper" which is a term that his attorney used Brain Watkins, in a recent interview that that is enough for him to be prosecuted because he benefitted from additional album sales or increased status as a gangster rapper. MAUREEN CAVANAUGH: As you say, Duncan says he is not a gang member, what is the criteria that law enforcement and the prosecution uses to determine whether someone is a member of a gang? DAN EATON: Well, you have to show ongoing activity with a particular gang. Active gang member has to mean something different than gang member alone. There is no question as Brian Watkins says, dating back to the mid 1990's that Mr. Duncan was a quote "documented gang member" closed quote. But in a jailhouse interview that Mr. Duncan gave to channel ten he denied that he was an active gang member. Was he an active gang member at the time of these shootings? It's not entirely clear. But the prosecution will have to show that, and that has to mean more than he was once a member of this gang. MAUREEN CAVANAUGH: Now, even the prosecution agrees that Brandon Duncan was not involved in this shooting, I mean, just to be clear not involved in this shooting at all - in the planning or the execution of this shooting, so why, again, was he charged? DAN EATON: Well, because in 2000 the voters passed proposition 21 which did enact penal code section 182.5 which expanded this notion of conspiracy. Your questions relate to the conventional notion of conspiracy, which it's obvious that you have some role in the planning or execution of a particular crime. And what this new law said was that, well, gang violence is a particular problem so as long as someone is an active gang member and has general knowledge of gang activity and merely benefits from that gang activity they can be prosecuted for conspiracy in connection with a particular felony. And it is his profiting from his music as a result of this particular shooting that has landed Mr. Duncan behind bars and now in court today. MAUREEN CAVANAUGH: Now, perhaps I'm misunderstanding the word benefitting, but from what I understand that Tiny Doo, Brandon Duncan is not a very successful rap artist. His CD has, I read somewhere, sold no copies -basically it's been given away. So how therefore would the term benefit be used in a prosecution like this? DAN EATON: The prosecution's argument is it doesn't have to result in tangible or monetary benefits at all. It's enough that it enhances his stature, that it makes him a badder dude. I'm sorry, a lot of my slang is way outdated so the listeners will have to forgive me, I'm of a certain age. The bottom line is that benefit doesn't have to mean money the way you would normally think of it. The argument is, well, it made him. It elevated his stature in the gangster rap community even if it didn't result in more sales of his CD or any sales for that matter. There is a question about whether that is going to work or not. MAUREEN CAVANAUGH: So, let me just say the chief of the San Diego gang prosecution unit is quoted as saying rap music "is just another form of communication that gang members use," is that therefore making a case that Tiny Doo's album is a form of gang communication? DAN EATON: I suppose that's right. And certainly he is making the argument by using that communication that Mr. Duncan has somehow benefitted from these gang related activities because without those gang related activities, he would not increase his stature as a gangster rapper. Basically what the DA's office is saying look, the fact that you are a rapper doesn't exclude the possibility that you're also a gang member who is involved in very heinous, felonious activity. And because the voters in their wisdom have chosen to explain the notion of conventional conspiracy to include things that wouldn't ordinarily be conspiracy then he is in trouble indeed because he is supposedly benefitting in some intangible way from his association with the gang. We have a caller on the line. Eric from Mid-city is calling in. Eric, welcome to show. Okay. CALLER: How are you, thank you. I know this isn't Mexico, but how is it different than a narcocorrido? DAN EATON: I'm not familiar with that. MAUREEN CAVANAUGH: A narcocorrido are these songs that travel along -- thank you Eric for the question by the way -- that are made up in celebration of drug cartels. Very, very popular among some gang members in the United States and in Mexico, a whole industry of people who make up these drug songs; basically would that also conceivably fall within this law? DAN EATON: It's a wonderful question, but as the caller said correctly this is not Mexico. This is California so this didn't come into play. But the caller's question raises an interesting question which is to say if the benefits are the results of artistic expression, the rapping and so forth, is that the kind of benefit that can appropriately be used to convict someone who wasn't actively involved of a conspiracy consistent with first amendment protection under the United States constitution. MAUREEN CAVANAUGH: And that is where I was going with my next question. So what kinds of first amendment issues does this case of Tiny Doo open up? DAN EATON: Well, it does raise the issue of association of course with respect to gang activity. But also when you talk about benefiting, what kinds of benefits really are enough to warrant a conviction under this particular statute? If you're talking about a benefit that arises out of protected artistic expression which has constitutional protection, is that going to be the kind of benefit that the courts say are acceptable? For purposes of this statue, that is the issue here. And it does raise some troubling issues. His attorney Brian Watkins says what is next. Are we talking about Brian De Palma and Al Pacino and so forth in the Scarface film and so on. Are we going to start prosecuting for people who engage that that kind of activity if they are active gang members? It does raise some troubling issues, but it is important to realize, Maureen in 2013 in a case The People vs. Johnson the California Supreme Court blessed the validity of penal code section 182.5 it just didn't say how far, how far the term benefits are allowed to go before it runs into constitutional problems. MAUREEN CAVANAUGH: And is this one of the reasons Brandon Duncan's case is, do you think, is getting national attention? DAN EATON: It is. Because what a lot of people are saying and I've read a lot of the blog commentary, it's fascinating, it says innocent rapper is charged for his artistic expression. That is really not quite right. Although it is certainly interesting to spin it that way. He is being charged because there is the perception, at least the DA is saying, that he benefitted in some way. And the California Supreme Court has said if you merely benefit, you're an active gang member, and you have general knowledge of gang activity - that is enough. The question is what does the word benefit really mean, and if it does get into this issue of artistic expression, does that go too far for the purpose of the constitution. MAUREEN CAVANAUGH: If he, according to the state law, if he was not an active gang member at the time that he made this album, would this prosecution be able to go forward? DAN EATON: I don't believe it would all though it's important to understand Maureen, that it did survive a preliminary hearing so a judge has found that there is probable cause to proceed with the trial that is underway today. But nonetheless it is an element that the prosecution will have to prove and if the prosecution does not prove he was an active gang member beyond a reasonable doubt if Duncan will be entitled to a defense verdict. MAUREEN CAVANAUGH: Now, has there ever been any other cases around the country regarding rappers lyrics. DAN EATON: It's very interesting. Just on Monday, Maureen there was a case before the United States supreme court a man named Anthony Elonis, he posted what were called rap lyrics about his estranged wife that talked about wanting to kill her and all kinds of awful things. And he said well look I'm just sort of a rapper and there are these qualifications and the Supreme Court whether a federal statute that makes it illegal to do these kinds of things in interstate commerce including social media applies to this sort of thing. But it's very interesting, during questioning during the case Justice Samuel Alito mused "the argument that the defense is making is, this sounds like a roadmap for threatening a spouse and getting away with it. You put it in rhyme and you put some stuff about the internet on it and you say hey I'm an aspiring rap artist". So it does raise some very interesting issues. Now of course, it's important to understand, this is not this federal law of course is not in this case but this whole idea of the protection of rap artists is very much in the forefront of the nation’s judiciary right about now. MAUREEN CAVANAUGH: And when do we expect a decision be made in that case? DAN EATON: Supreme Court will decide that case at the end of June. And understand even the California supreme court has addressed this issue of rhymes, back in 2004 in a juvenile case involving George T (CHECK AUDIO), where he had some very interesting poems that he share would classmates. What the California supreme court says No I don't care how his classmates viewed it, it's not enough for him to be convicted under the criminal threat statute but the California Supreme Court, also said we're not going to impose any kind of bright line that allows you to get away with this because no matter what you say, you're not allowed to get away with a poem like “roses are red, violets are blue. I'm going to kill you and your family too". I'm quoting from the California Supreme Court decision. So there is license but it's not a license necessary to kill and to put people in mortal fear of their lives. MAUREEN CAVANAUGH: Just in wrapping up, in the Tiny Doo, Brandon Duncan case, that is underway here in San Diego and reading about it, Dan I got the impression from a lot of people writing about this that they were surprised that this case is actually gotten this far, that it did survive a preliminary hearing and seems to be going to trial; is that a surprising thing? DAN EATON: Well, the reason it is a surprise, one the statute hasn't been used very often and the California Supreme Court only ruled on its validity last year, at the end of last year in fact. And this, the reason lot of people are surprised - wait a minute. All he did was sing a song about his experiences in the gang. Where is the benefit there in respect to gang activities? Even if you can show that he is an active gang member, this sounds like you're prosecuting someone because he made a record and that doesn't seem fair. That ultimately maybe an issue that is decided by the higher courts including the, potentially, the United States Supreme Court. MAUREEN CAVANAUGH: And I think it's important to say that none of the songs on this rap album have anything to do in particular with any of the allegations of the crimes that are being alleged in this conspiracy. DAN EATON: Completely undisputed which is why so many people are surprised it's gotten this far, but this is the kind of thing that if it goes forward it does expand the notion, doesn't it, of what it means to benefit under the 182.5 for purposes of this gang statute. Look the voters decided that gang activity was particularly problematic thing problematic thing and that's why they enacted this statute in their wisdom in 2000. MAUREEN CAVANAUGH: Before you go Dan I want to ask a few general questions about grand juries. As you know, yesterday a grand jury in New York did not indict a New York City police officer for the death of Eric Garner, and that death was ruled a homicide by the city's medical examiner. Then there was no true bill after this no true bill in New York. It came just a week after the grand jury in Missouri did not indict the officer who shot and killed Michael Brown, so there has been a lot of criticism about grand juries and about how they can be perhaps manipulated by prosecutors. Can you tell us how a grand jury operates? DAN EATON: A grand jury is not there to decide guilt or innocence. They are there to decide based on mostly evidence prosecution gives them whether there is probable cause to proceed ultimately to a trial. It takes the place of where to use of a preliminary hearing. Preliminary hearings are familiar to California by what they saw in the O J Simpson case. That would be a good example of that. We have them here for criminal cases in California but they are rarely used. They look at a variety of evidence the prosecution presents, contested and so forth and they decide whether there is probable cause and obviously the grand jury in both of these cases say there wasn't enough to prosecute. The reason people are scratching their heads is that the top judge in New York once famously said in a 1985 interview in the Daily News, his name is Sol Wachtler the prosecution could indict a ham sandwich if they wanted. Quoted by Tom Wolf in The Bonfire of the Vanities- famous book on this, so the question is, wait if the prosecution didn't get an indictment with a grand jury, what was really going on here. MAUREEN CAVANAUGH: Do we know if these prosecutors actually asked for an indictment? DAN EATON: Clearly that was part of the process. That's why you're convening a grand jury to decide if there is enough to move forward to the next level. The interesting thing you have all of these states, a variety of states use them and they have different rules, example, Missouri uses 12 jurors for a grand jury. We use up to 23 depending on a particular county in our state system. In the constitution the right to grand jury for indictment is guaranteed for federal prosecution, the Supreme Court has said however that the states are not required to follow that procedure there. The question is whether the grand jury process, because it's so tilted to the prosecution, is unfair. Interestingly here we're talking the grand jury process because there is perception of some that it wasn't used to allow a case to go forward that many people think should have. MAUREEN CAVANAUGH: Is there a conflict of interest inherit in using grand Juries in cases that involve possible criminal acts of law enforcement since everyone involved is a part of law enforcement. DAN EATON: Of course I understand that argument and so forth but that could be made I suppose with prosecution of all-- any law enforcement officer, the fact is also the grand jury itself the members not part of law enforcement themselves, so any conflict of interest as it were as far as the way a case is presented, maybe diffused by the fact that the people who are ultimately deciding whether there is probable cause are not themselves affiliated with law enforcement and be clear there are cases where grand juries have been used to indict members of law enforcement. It's just what we have here are two cases coming very close together of people of a particularly explosive dynamic where indictments did not result in some suspicion because of the frequency with which indictments are handed up by grand juries that something must be systemically a miss. MAUREEN CAVANAUGH: I have been speaking with legal analyst Dan Eaton with San Diego law firm of Seltzer Caplan McMahon and Vitek. Dan as always, thank you so much. DAN EATON: Thank you, Maureen. MAUREEN CAVANAUGH: Coming up Balboa Park is all shined up for the opening of a very special December nights event. It's 1223 and you're listening to K P B S mid-day edition.