‘It Primed the Jurors’ Implicit Bias’: Califonia Judge Overturns Two Rappers’ Murder Convictions That Used Song Lyrics as Evidence

Two men had their murder convictions vacated after a California judge ruled the prosecutors “more likely than not” introduced elements of racial bias by presenting lyrics from the defendants’ rap songs as evidence. The public defenders representing the men successfully argued a hot-button argument about “Freedom of Speech,” currently entangling many popular rappers.

On Monday, Oct. 3, Judge Clare Maier of the Contra Costa County Superior Court ordered a new trial for Gary Bryant Jr. and Diallo Jackson, vacating the conviction of two Black men in the 2014 murder of Kenneth Cooper in an Antioch apartment complex, ABC News reports.

Bryant, then 28, and Jackson, then 21, were charged with the fatal shooting of Cooper and were found guilty in 2017. The prosecution introduced the lyrics to prove they were affiliated with a “criminal street gang,” a court order said.

Maier said in an order, 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,” ruling a mistrial. 

The judge said the prosecutors violated the Racial Justice Act of 2020 when they entered the lyrics into the case. The need for the law was to combat “the use of racially incendiary or racially coded language, images, and racial stereotypes in criminal trials.”

The law further states, “The state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin. A violation is established if the defendant proves, by a preponderance of the evidence” that the prosecution used the rap lyrics to directly paint a negative picture of them as Black men.

By referencing the RJA, Maier becomes the first judge in the state to associate the civil rights violation with rap music, according to Mary McComb, a state public defender, according to the New York Times.

Ellen McDonnell, the public defender in Contra Costa County, expanded on the significance of the ruling saying, “This case realizes the promise of the California Racial Justice Act, which was designed to prohibit racial bias in policing, prosecution and sentencing.”

During their original trial both men pleaded “not guilty,” and their defense lawyers claimed they were deprived of a fair trial because the prosecution tainted the jury’s judgment on them.

Evan Kuluk, who is representing Bryant, filed a motion for a new trial in June 2021, after the RJA legislation was passed in the year before. He first argued the prosecution injected racial bias into the case when he pulled the lyrics as evidence.

“The Racial Justice Act, the creative expressions bill 2799, and this case are all moments of positive change in making the legal system more just,” Kuluk said, according to CNN. “Hopefully making cases more fair for defendants facing similar issues.”

Matt O’Connor, who is representing Jackson, filed to join the motiont for a retrial in September.

While the two public defenders were pleased with the judge’s decision, Contra Costa County District Attorney Diana Becton said in a statement she “disagrees” with the order.

Becton wrote, “Our office disagrees with the court but will respect the ruling. 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.”

Ted Asregadoo, a spokesperson for the District Attorney’s office, said the lyrics were a “small” part of the evidence used in the case and listed videos, evidence of gang affiliation, and other pieces of their argument that warranted punishment.

“This is not a case where Bryant and Jackson were convicted of murder solely because of rap lyrics,” Asregadoo said. “The jury found them guilty on all counts, including first-degree murder, and was because of all the evidence the prosecutors presented in court, and that proved beyond reasonable doubt that they were responsible for murdering Kenneth Cooper.”

Kuluk said while the lyrics were a “small” part in the prosecution’s case, they “were used as part of the prosecution’s bigger strategy,” which aimed to paint Bryant 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.

The judge referenced an expert witness on the use of lyrics in criminal cases, Andrea Dennis. The John Byrd Martin Chair of Law at the University of Georgia School of Law and author of “Rap on Trial,” said that rap lyrics are not actual reflections of an artist’s reality, or state of mind and do not necessarily speak to who they are in society.

The order explained, “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.”

Maier also noted, “It primed the jurors’ implicit bias regarding negative character evaluations of African American men as rap artists and as being associated.”

Other ways the prosecution did this was by using “racially coded phrases,” which would evoke the idea that Black men were criminals thirsty for violence.

The judge objected to the use of terms like “pistol whip,” and “drug rip,” 29 times during closing arguments, and the mention of the rappers’ use of the n-word, saying the “objective observer” would think negatively of the men after hearing the words. Maier said by highlighting the racial epithet, the “objective observer” would see the response in a discriminatory and “dehumanizing” way.

The prosecutors also used nicknames to describe the men.

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

A week ago, the California governor, Gavin Newsom, signed a law to limit the use of rap lyrics as evidence in criminal proceedings. The law requires a judge to determine if the lyrics in question

The court “considered the principles” of the new law, despite it not being in effect at the time of her decision.

The American Civil Liberties Union of Northern California is standing with the governor and many artists that believe rap music should be considered protected speech under the First Amendment.

In a tweet, the ACLU wrote, “In one of the first tests of California’s Racial Justice Act, a judge has thrown out a Black rap artist’s murder conviction and ordered a new trial. The prosecution used Gary Bryant Jr’s rap lyrics as evidence that he was a gang member. Without any other proof.”

 “Rap is protected free speech under the first amendment. This ruling represents a major victory for free speech. It’s high time that prosecutors stopped weaponizing a form of artistic expression to send Black men away for long prison terms.”

The ACLU was a co-sponsor in the Racial Justice Act’s expansion.

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