Judge overturns murder convictions of Black men, ruling rap lyrics used at trial likely injected racial bias

Prosecutors' use of rap lyrics at trial has come under scrutiny.

October 7, 2022, 2:19 PM

A California judge vacated the murder convictions of two Black men on Monday after ruling that prosecutors "more likely than not" injected racial bias into the proceedings by presenting the men's rap lyrics as part of the alleged evidence.

Judge Clare Maier of the Contra Costa County Superior Court ordered a new trial for Gary Bryant Jr., and Diallo Jackson, two aspiring rappers, who were charged with first degree murder and convicted of fatally shooting Kenneth Cooper at an apartment complex in Antioch, California, in 2014, where Bryant was also injured. Both men pleaded not guilty.

The court "concludes that the use of defendants' rap lyrics and videos at their criminal trial, though not done to purposefully Invoke racial bias, more likely than not triggered the jury's Implicit racial bias against African American men," Maier said in the order obtained by ABC News.

The judge determined that by introducing the lyrics, prosecutors violated the Racial Justice Act of 2020 – a law that seeks to "eliminate racial bias from California's criminal justice system," according to the law's text.

Gary Bryant Jr., is pictured with his mother Denise Holdman in an undated photo.
Courtesy Denise Holdman

Evan Kuluk, the public defender representing Bryant, and Matt O'Connor, the public defender representing Jackson, welcomed the judge's decision in statements shared with ABC News. In June 2021, Bryant filed a motion for a new trial under the newly passed Racial Justice Act of 2020 in which he argued that the prosecutor's use of the lyrics injected racial bias into the case. Later that month, Jackson filed to join the motion for a retrial.

Contra Costa County District Attorney Diana Becton told ABC News in a statement that the DA's office "disagrees" with the order and intends to file new charges against Bryant and Jackson.

"Our office disagrees with the court but will respect the ruling," Becton said. "We intend to proceed with criminal charges against Gary Bryant, Jr., and Diallo Jackson for the murder of Kenneth Cooper and the assault of a 13-year-old with a firearm."

Referencing the lyrics of hip-hop artists in criminal charges is not new and is a practice that has drawn criticism from both freedom-of-speech advocates and the musicians themselves, who argue that introducing lyrics into case with the implication that they are reflections of reality and the artist's true state of mind, discounts rap as a form of artistic and creative expression.

According to court documents, attorney Andrea Dennis, the co-author of "Rap on Trial," testified as an expert witness in the case and said that based on her research, the lyrics of other musical genres have not been similarly targeted by prosecutors.

"Ms. Dennis explained in her direct testimony that the literal interpretation of rap lyrics in a criminal prosecution relies on racist stereotypes of black men as violent by making the assumption that in the rap song defendants are writing about only what has actually happened to them...without any reference to artistry or the possibility of varying Interpretations," the judge recounts in her order.

Gary Bryant Jr., is pictured with his mother Denise Holdman in an undated photo.
Courtesy Denise Holdman

The judge's decision to order a new trial comes days after California Gov. Gavin Newsom signed a new bill into law, limiting the use of rap lyrics as evidence in criminal proceedings by essentially requiring a judge to determine the admissibility of the lyrics in question and consider whether they are directly linked to an alleged crime.

Judge Maier said in the order that although the bill was not in effect at the time of her decision, the court "considered the principles" articulated in the law and found that prosecutor's use of the lyrics in this case likely "had a discriminatory impact."

Ted Asregadoo, spokesperson for the Contra Costa DA's office, argued that the lyrics were a "small" part of the evidence and were introduced along with videos by prosecutors at trial to charge the men with gang enhancements, which warrant additional punishments to a felony if it was committed to benefit a criminal street organization.

According to court documents, lyrics and videos of the men were referenced by the prosecution to allege that Bryant and Jackson were gang members – a claim that both men denied, according to their attorneys.

Kuluk pushed back on the claim that the lyrics played a "small" part in the case, telling ABC News that the lyrics "were used as part of the prosecution's bigger strategy," which attempted to paint his client as a "violent individual."

"This is the kind of evidence that comes into the gang enhancements and can be very prejudicial on a jury," he said.

As prosecutors prepare to file new charges against the men, Asregadoo told ABC News that the DA's office will review the use of lyrics in this case and determine whether they violate the new law signed last week by Newsom.

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