Judge Overturns Murder Convictions, Citing Use of Rap Lyrics at Trial

A judge in California vacated the murder convictions of two Black men on Monday, finding that the prosecution had most likely injected racial bias into the trial by quoting the men’s rap lyrics and repeating their use of a racial slur, court records show.

The ruling was the first by a judge in California to find that the use of rap lyrics violated the Racial Justice Act, a state law signed in 2020 that seeks to prevent racial and ethnic discrimination in criminal trials, Mary McComb, the state public defender, said on Tuesday.

The decision was of particular interest because Gov. Gavin Newsom signed an expansion of the law last week. He also signed a separate bill that restricted the use of rap lyrics and other creative works as evidence in criminal proceedings. Although the decision did not hinge on the expansion, it could pave the way for similar challenges, defense lawyers said.

“This case realizes the promise of the California Racial Justice Act, which was designed to prohibit racial bias in policing, prosecution and sentencing,” Ellen McDonnell, the public defender in Contra Costa County, where the convictions were overturned, said in a statement.

Mr. Newsom’s expansion of the law was designed, she added, “to prevent, as much as possible, this type of unjust verdict.”

In her decision, the judge, Clare Maier of the Superior Court of Contra Costa County, ordered a new trial for Gary Bryant Jr. and Diallo Jackson, who were charged with fatally shooting a man named Kenneth Cooper in Antioch, Calif., in 2014.

Both men were found guilty of murder and other charges in 2017. They later challenged their convictions, questioning the use of their rap lyrics and Facebook posts at trial.

Beginning last year, the men presented the testimony of an expert in implicit bias and legal rhetoric, an expert in the history, culture and conventions of rap music and racial bias in the legal system and an expert in rap music, including content analysis.

Prosecutors urged the court to disregard the experts’ testimony. They contended that because none of the experts spoke to any of the jurors, “there was no actual measurable evidence to support their opinions” that the prosecution had triggered implicit bias among the jurors, according to the judge.

But Judge Maier cited expert testimony that, she said, supported the men’s argument that, whether purposefully or not, the prosecution’s use of their rap lyrics as evidence of their involvement in the killing and gang membership “premised their convictions on racially discriminatory evidence.”

“It primed the jurors’ implicit bias regarding negative character evaluations of African American men as rap artists and as being associated” with criminal behavior, Judge Maier wrote.

The Contra Costa County District Attorney’s Office did not immediately comment.

Mr. Bryant and Mr. Jackson had argued that, during closing arguments, the prosecution had used “racially coded phrases” that evoked stereotypes of African American men as criminals with a propensity for violence, the judge wrote.

The slang terms used by the prosecutor included “pistol whip,” “drug rip” and “down-low,” as well as several nicknames. Mr. Bryant never used those terms himself, Judge Maier wrote.

“Each of these slang phrases were introduced into trial in the first instance by the prosecutor,” she wrote.

The judge found that an “objective observer” could conclude that the terms “drug rip” and “pistol whip,” which the prosecutor used 29 times during closing arguments, were “racially coded” terms that evoked stereotypes of African American men as more likely to engage in violence.

She found insufficient evidence, however, that the term “down-low,” would activate “subconscious stereotypes of African American men as violent or dishonest.”

Mr. Bryant and Mr. Jackson also claimed that the prosecution’s repetition of a racial slur that they had used in rap lyrics, which the prosecutor repeated while questioning a police officer who testified at trial, was racially discriminatory.

The judge agreed that “an objective observer” could conclude that the repeated use of the racial slur was discriminatory and “dehumanizing.”

Mr. Jackson’s lawyer, Matthew O’Connor, wrote in an email that “jury trials are the search for truth.” “Explicit and implicit bias do not aid in that effort,” he wrote. “The California Legislature has provided a mechanism to rid the criminal justice system of racial bias, and the court here followed the law and vacated the convictions.”

The American Civil Liberties Union of Northern California welcomed the decision, saying rap is protected speech under the First Amendment.

“This ruling represents a major victory for free speech,” the group wrote on Twitter. “It’s high time that prosecutors stopped weaponizing a form of artistic expression to send Black men away for long prison terms.”

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