ACLU prohibited from joining gang rap case

[marym625]

Rap artist, Tiny Doo already spent 8 months in prison for a crime he had zero to do with. But that isn't stopping San Diego prosecutors from trying to put him and some others away for life.

The prosecution is using a conspiracy law, that is yet untested, to put Brandon Duncan, aka Tiny Doo, in prison for a crime he didn't commit, had no prior knowledge, has no ties to and didn't even write about in his music. The song they are using, to show he is part of a "conspiracy" in a 2013 gang related shooting, and his "benefiting from the crime" is from his album "No Safety." The album was released years prior to the shooting.

Tiny Doo has never been in a gang. He has never been convicted of a crime and he doesn't rap about going out and shooting this guy or that guy.

Because this is very much a First Amendment case, the San Diego branch of the ACLU filed an amicus brief. Unbelievably, they were blocked. Or maybe believably.

A judge on Tuesday denied an attempt by the American Civil Liberties Union to intervene in the controversial gang conspiracy prosecution of rapper Brandon “Tiny Doo” Duncan.

ACLU San Diego’s legal director, David Loy, had argued in what’s called an “amicus” brief that the District Attorney’s Office’s prosecution violates Duncan’s First Amendment right to free speech. Amicus briefs are filed by non-parties in a case and typically support one side or another. They are often filed during the appellate stage but have at times been granted before trial.

http://m.utsandiego.com/news/2015/feb/10/aclu-prohibited-gang-rap-duncan-amicus/

The wave of unfair prosecutions, illegal arrests and outright murders by law enforcement in this country is very telling in where we are headed. The SCOTUS has already done away with Affirmative Action, Voter Rights and separation of church and state. The jailing of journalists and whistle blowers is becoming more and more prevalent. Our Fourth Amendment rights are close to gone. How far behind is the complete dismantling of the First Amendment?

It is usually during the appellate stage that amicus briefs are filed and people and entities, like the ACLU, are allowed to be part of the process. But the fact that Mr. Duncan has been charged and already spent 8 months in prison, for a crime he didn't commit, is just another step in taking our rights away. Certainly Mr. Duncan’s rights.

This is a very important case. If the prosecution is able to charge someone, someone this far removed from the crime they're supposedly part of, we're in trouble.

More at links

The law:
http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=182-185

ACLU San Diego blog (prior to decision)
https://www.aclu.org/blog/free-speech-racial-justice/man-faces-life-prison-forrapping

The Guardian article (great information)
http://www.theguardian.com/music/2014/dec/03/tiny-doo-rapper-facing-life-for-making-album

Interview with Tiny Doo
http://m.noisey.vice.com/blog/tiny-doo-interview-jail-no-safety-faces-life-in-prison-for-recording-album

[TexasMommaWithAHat]

1. I agree.

nt

[marym625]

4. wish I knew what to do about

But frankly, I'm at a loss.

Thank you

[Yo_Mama]

2. I don't think that's justified.

I don't know what recourse the ACLU has, but thank you for posting and I will try to find out more.

Reccing.

[marym625]

3. Thank you. n/t

[jberryhill]

5. There's no right of third parties to file briefs in trials

It's entirely discretionary at the trial level to admit third party briefs.

While it is fairly normal at the appellate level, a trial court is not required to consider third party arguments of law.

[marym625]

6. True

But it does happen.

This case is atrocious. Someone speaking on the side of right in constitutional law for a case that never should have been filed, is desperately needed.

I understand that the appellate court will be more likely to allow the ACLU standing. But it's not just Tiny Door on trial. It's the first amendment

[onenote]

7. If they allowed amicus briefs on one side, they'd have to allow them on the other

[marym625]

9. I don't have an issue with that

Last edited Tue Feb 17, 2015, 09:33 PM - Edit history (1)

I truly don't see how this law can stand. At least not in this application

[jberryhill]

12. Do you have a link to the text of the statute in question?

[marym625]

19. yes

It's in the OP. First link at the end

[jberryhill]

26. That does not appear to the be the correct one

That's the general conspiracy to commit a crime statute.

[marym625]

27. That's what was cited in the ACLU article

Let me check

[jberryhill]

30. Unless it is this part here:

"182.5. Notwithstanding subdivisions (a) or (b) of Section 182, any
person who actively participates in any criminal street gang, as
defined in subdivision (f) of Section 186.22, with knowledge that its
members engage in or have engaged in a pattern of criminal gang
activity, as defined in subdivision (e) of Section 186.22, and who
willfully promotes, furthers, assists, or benefits from any felonious
criminal conduct by members of that gang is guilty of conspiracy to
commit that felony and may be punished as specified in subdivision
(a) of Section 182."

[marym625]

32. That's it

Even though they have no proof he was ever in any gang.

[jberryhill]

34. So?

If there is no evidence that the element of "actively participates in any criminal street gang" is met, then do you think they will get a conviction?

Is your objection the statute, or that this guy is being tried on flimsy or non-existent evidence of being an active participant in a criminal street gang?

In other words, if I rob the bank, my buddy drives the getaway car, and another friend sets up a camera across the street to film the robbery, then should it be okay for the cameraman to profit from sale of the film?

Now, whether there is evidence that the cameraman was, or was not, part of the conspiracy to rob the bank is a question of proof that would need a jury to decide. But is there a problem in principle with going after the cameraman as part of the criminal conspiracy if he was (a) in on the plan to rob the bank and (b) made the film to profit from it?

[marym625]

37. except that freedom of speech

Guarantees the right to write and publish a song. Period. He wasn't in any way involved in this shooting. Nor was his music.

I have a problem with a great deal of it. This law can be used to prosecute a bystander, in your scenario, that happened to catch the robbery on video. Or even someone putting the cops beating someone on YouTube if they make money off their channel.

[jberryhill]

41. The law doesn't prohibit writing or publishing a song

First off, there is nothing in this statute or any of the other state statutes on profiting from crimes that prohibits anyone from writing or publishing a song. What the statute is aimed at is reaping a profit by doing that.

But when you say:

"He wasn't in any way involved in this shooting."

Then are you saying that you don't have a problem with the statute? Saying someone didn't commit a crime under a statute, and saying there is something wrong with the statute, are two different things.

Saying "He wasn't in any way involved in this shooting" suggests you wouldn't have an issue if he was involved in the shooting.

"This law can be used to prosecute a bystander, in your scenario, that happened to catch the robbery on video. Or even someone putting the cops beating someone on YouTube if they make money off their channel."

Under either of those two scenarios, how would the element of "active participant in a criminal street gang" be present?

[marym625]

42. How is writing a song years before a shooting

Involvement?

I have all kinds of problems with this statute. It's much too far reaching.

[jberryhill]

44. It probably isn't

Is your problem that he is not guilty under the statute, or is your problem the statute itself?

These two issues keep getting crossed in the discussion.

Whether he is guilty of the crime charged, or whether what he is charged with should be a crime, are two different questions.

So I'm wondering if the argument is:

1. "People should be able to profit from artistic works about a crime in which they were a conspirator."

Or

2. "This guy was not a conspirator in a crime about which he made an artistic work."

Are you arguing for #1, #2, or some combination of both?

If the point here is #2, then, sure, people get tried for stuff and found not guilty all of the time.

[marym625]

48. my issue is with both

I have a huge problem with a far reaching, broadly written statue that puts anyone convicted in prison for life. I have a problem with this law being used to charge, imprison and convict someone that had zero to do with the crime being used.

This statute, from how it reads, is as broad as the old, "he's getting away so I shot and killed him" laws.

It's wrong on every level

[marym625]

62. Actually, a better example of how this can be abused

Is the RICO act and Civil Forfeiture

[marym625]

29. That's it

That's the law they're using

[merrily]

38. Read the second sentence of the OP.

[merrily]

33. So?

[Yo_Mama]

13. That's true - but this is a novel prosecutorial theory, and if a conviction occurred,

an appeal would certainly be filed along these lines.

I don't think ignoring the issue rightfully raised is justified under these circs. As a procedural matter you are correct, but in a broader context I think this is a big mistake.

[jberryhill]

14. ...and on appeal, that would be an appropriate thing to do

If the trial court judge dismisses the case on briefs, then that ruling is good for *that* trial court. The prosecutor can bring essentially the same case against another defendant in any other trial court.

The state would appeal the dismissal anyway, and then the entire argument about the statute would be, at that point, in the hands of the relevant appeal court.

In other words, it is going up on appeal either way, unless of course he's found not guilty, in which case everybody saves time by getting the trial - i.e. the factfinding - over with, and then appealing the legal issue.

It's a lot more efficient to get the trial over with, and then have the appellate court, which is better qualified and will have uniform application in all of the trial courts, deal with the legal issue since it is going to go there anyway. What the ACLU is doing is to get a foot in the door in order to file their brief when the appeal is taken.

[hootinholler]

8. Good thing Jim Croche ain't still around

He might get charged for Leroy Brown.

What other artists could be charged?

[marym625]

10. OMFD!

You're right! I never thought of that.

Damn! Who wouldn't be charged? Well, The Who would be. "Out here in the fields, I fight for my meals"

[Dr Hobbitstein]

11. Actually

It's "Out here in the fields, I FARM for my meals". The song is about poor farming families, where teens drop out of school to tend the family farm (ie, a Teenage Wasteland).

[marym625]

20. ya know

I had read that before so I looked up the lyrics before I posted. The couple of links I went to said "I fight"
Doesn't mean they're correct

I have also read it's about Vietnam. Teenage wasteland

[Dr Hobbitstein]

23. Yeah, it's most commonly misheard as "fight"

Almost every lyric site lists it that way.

Lyrically, however, it doesn't make sense with "fight".

Out here in the fields
I fight for my meals
I put my back into my living
I don't need to fight
To prove I'm right.

He fights, but then states he doesn't have to fight. It doesn't make sense. Farm, however, does. Especially with the following line "I put my back into my living".

I used to think it was about Vietnam as well. However, it was part of a bigger project called Lifehouse, a rock opera that was abandoned. "Baba O'Riley" was going to be used in the Lifehouse project as a song sung by Ray, the Scottish farmer at the beginning of the album as he gathers his wife Sally and his two children to begin their exodus to London.

[marym625]

25. interesting

Thanks for the information. That makes more sense. I did wonder about the fight, fight but hey, it was a time when things were nuts. Ya know? Like now.

[jberryhill]

28. Except the UK wasn't involved in Vietnam

[marym625]

31. like that would stop the US

Can't really put the sarcasm thing there. But a little

[jberryhill]

16. The statute is not that broad

A lot of states have laws which prevent a convicted criminal from profiting from the crime. In other words, you can't go out and rob a bank, get convicted of robbing the bank, and then write a book "How I Robbed the Bank" and profit from that book.

What this statute is aiming at is applying that same principle to persons who acted in concert with the person who committed the crime. For example, let's say you drove the getaway car, and were granted immunity from prosecution in order to convict me of robbing the bank. This law is aiming at not allowing you to write "How I Drove The Getaway Car For the Bank Robbery" and profit from it.

Incidentally, you can write the book, but you can't reap any financial reward for it.

It's not some general law about "works about crime" in general, or even works about particular crimes. It's about "works about crimes in which you were a participant or conspirator".

But I haven't seen the actual text, and I doubt most of the people commenting have done so either.

[marym625]

21. Yes

I understand that. But that isn't how this is being applied

The actual statute is in the OP at the bottom

[Yo_Mama]

15. There was a wild colonial boy, Jack Donahue was his name.

http://en.wikipedia.org/wiki/The_Wild_Colonial_Boy

[Ms. Toad]

17. The law and the case are atrocious,

but amicus briefs are not common at the trial level - especially a criminal trial. It would be more unusual for the court to have permitted it.

[marym625]

22. I get that

It still pisses me off. Everything about this case is just atrocious

[gregcrawford]

18. Yet another example...

... of a malicious sociopath exploiting the power of his office for his own self-aggrandizement, while at the same time tightening the noose to strangle even the pretense of justice. Psychotic prosecutors - and there are hundreds, if not thousands, of them - MUST be held accountable for their blatant abuses, or this is only going to get worse. Much, MUCH worse.

These are not isolated incidents. The pattern that emerges when viewed as related events over a period of time shows that the grotesque preponderance of police and judicial malfeasance is very purposefully aimed at the Black community. The malignant Right-wing filth determined to turn this country into a ruthless police state are intent on provoking civil unrest in order to justify the total elimination of civil rights for EVERYONE, not just minorities. All of these strategies are right out of the Fascist playbook: Target a group or groups toward whom the Great Unwashed harbor distrust and resentment, and exploit the hell out of it by demonizing them at every possible opportunity. What do you think Fox News is for?

"Vast Right-wing Conspiracy?" You're goddamned right it is!

"For evil to prevail, it needs only for 'good' people to do nothing."

[marym625]

24. +1000

Just don't know what to do about it anymore.

I watched the documentary Weather Underground last night. Absolutely understand how they got to that point. Not saying I agree. Just understand

[merrily]

36. You don't need a Weatherman to know which way the wind blows. (Bob Dylan, who once claimed he

was never political.)

I read Bill Ayers wiki during the 2008 primary. He raised the kids of the Weathermen who died when that building in NYC exploded, something that doesn't get mentioned much, now that he's called a domestic terrorist, as opposed to a war protestor.

Also, the only thing he blew up himself was a toilet in the Pentagon in the middle of the night. (Yep. he managed to get into the Pentagon with explosives in the middle of the night.)

[marym625]

40. I hate to admit I didn't realize

Ayres is married to Bernadine Dohrn.

According to the documentary, the Weather Underground took the name from the song, not the other way around. But to say Dylan wasn't political, he must have meant something else. Way too much early stuff us very political. It's alright ma. All politics

[merrily]

43. Maybe he was just in love.

He said he was never political after he got older. When young, he admired Woody Guthrie, then was with Joan Baez. He was Jewish, he was a born again Christian on and off, he was a lot of things. I have no clue who he really was. Maybe he doesn't either.

[marym625]

45. sounds like it

As long as he is the musician/poet that he has always been, that's more than we can ask for

[merrily]

47. He did write some great stuff.

The folk movement was so important during that era. One number one song after another against the war and for equal rights. (And before that, about unions, farmers, etc.) A huge influence on the thinking of of the nation's youth.

[marym625]

49. my favorite thread on DU

Is actually from my own post. It was "post your favorite protest song" over 100 songs on it. LOTS of folk music.

[merrily]

51. Those were the days, my friend. We thought they'd never end. Then, they ended.

[marym625]

53. Yeah

But I think they're coming back. There are some powerful songs out there, though many are not in our kind of genre.

Here are my two favorite current (ish) protest songs

La Rage - Keny Arkana - French Rap (English subti…:

Call the Cops - Rob Hustle ft. Bump:

[merrily]

55. That would be nice.

[Tsiyu]

35. Can we arrest Toby Keith for encouraging

drinking while partying and thereby inciting drinking and driving?

Now a red solo cup is the best receptacle
For barbecues tailgates fairs and festivals
And you sir do not have a pair of testicles
If you prefer drinking from glass

A red solos cup is cheap and disposable
And in fourteen years they are decomposable
And unlike my home they are not fore-closable
Freddie Mac can kiss my ass woo

Red solo cup I fill you up
Let's have a party let's have a party
I love you red solo cup I lift you up
Proceed to party proceed to party

Now I really love how your easy to stack
But I really hate how your easy to crack
'Cause when beer runs down the front of my back
Well that my friends is quite yucky

But I have to admit that the ladies get smitten
Admiring how sharply my first name is written
On you with a sharpie when I get to hittin'
On them to help me get lucky

Red solo cup I fill you up
Let's have a party let's have a party
I love you red solo cup I lift you up
Proceed to party proceed to party

Now I've seen you in blue and I've seen you in yellow
But only you red will do for this fellow
'Cause you are my Abbot to my Costello
And you are the fruit to my loom

Red solo cup you're more than just plastic
You're more than amazing you're more than fantastic
And believe me that I'm not the least bit sarcastic
When I look at you and say

Red solo cup, you're not just a cup. (No, no, God no)
You're my, you're my friend. (Friend, friend, friend, life long)
Thank you for being my friend.

Red solo cup I fill you up
Let's have a party let's have a party
I love you red solo cup I lift you up
Proceed to party proceed to party

Red solo cup, red solo cup (I fill you up, let's have a party)
Let's have a party (Let's have a party) Let's have a party
(Red solo cup) Oh red solo cup (I lift you up)
Let's have a party, proceed to party yeah yeah

And don't even get me started on heavy metal lyrics, or even old rock and roll lyrics. Reba covered "The Night the Lights Went Out In Georgia" which is about murder.

How about authors who pen books about terrorist acts or conspiracy?

If we can be arrested and incarcerated for song lyrics, America has truly and completely jumped the shark.

We have no rights left. Unbelievable.

[marym625]

39. sure. why not?

Let's just jail or kill everyone that has an issue with anything the government does at all!

[Tsiyu]

56. This nation was formed in part to stop the trend

of forcing people to pay tribute. Of legislating one person's profit at another's expense.

Looks like jerks want to go back to a monarchy, back to zero rights, back to forcing the "little guy or gal" to pay for the toys of the rich through low wages, imprisonment and disenfranchisement.

Maybe when the next generation wakes up from their video game stupor ( the boomers are frickin hopeless to save anything - even themselves - as they've been in a lala-land stupor ) they'll begin to take back the rights we've let slip away.

There's always a tipping point. This case may not be it, but one will arise, and then perhaps the younger generations will renew what this nation was supposed to be.

[marym625]

57. I used to think there was always a tipping point

But now, I'm not so sure. We should have long ago passed it.

I don't know that the boomers are all in lala land. It was the boomers that tried to make a change. They went pretty far and nearly succeeded. But then the Vietnam War ended, gas was at a shortage (cough) jobs were hard to find and out of it all, we got Reagan. Nixon did just what he needed to do to appease the masses, and not one inch more.

[Tsiyu]

58. AS bad as things are, a great many things are working right

for a lot of people.

We have to fix what's wrong, but keep what's good and right.

There is ALWAYS a tipping point when people become overly oppressed. People just don't feel overly oppressed yet in America, and many treat their TVs like oxygen, inhaling the propaganda like it's life support.

Many people are so isolated in this nation, and TV gives them comfort, so they trust whatever spews out of their favorite newsreader/PR person's piehole. And they shop dutifully for the products advertised and hate whom they are told to hate.

"HIPP-MOE-TIZED" as we would say in our family.

But young people aren't TV addicts like their parents and grandparents. They're internet addicts. And the internet doesn't give a fuck who you are. Justice is meted out harshly here, sometimes unfairly once the facts are known.

Look at hackers and others who reach tipping points and go after businesses and government agencies.

At some point, there will be an egregious event or set of events that the majority can agree cannot be tolerated. And it may be very ugly.

My hope is that young people will start a new party, take over Congress and set things right without any bloodshed or turmoil.

They just don't trust the new Democrats, who buddy up the corporations, the same Big Pharm, Big Ag, Kochsucking, War on Drugs Dogma that Republicans all-out fellate. For dough.

Kids won't hold their noses and compromise the way older people will, and you can't penetrate the New Democratic Party - in the South and in rural areas, if not in the cities - unless you look, act and talk like a conservative.

That's why I hope the kids start a new party.

[marym625]

59. Just curious

Why don't you think older folks won't do anything? Not necessarily disagreeing with you.

You said there's a lot that's working? Care to elaborate? Because I don't see that. I see some things that aren't killing us. But that's about it

[Tsiyu]

60. Oh, I think there are many problems

and they are severe problems, with horrific, life-altering consequences.

Telling us the wealthy will only be motivated to help their country if we coddle them and let them make lots of money, and then telling the working person that their incentive should be a "work ethic" and not a paycheck, is just dumb commentary on so many levels - from those trying to sell it STILL and from those who bought it, hook, line and sinker.

When I hear working people my age say that a living wage is a horrible idea, I realize there is no hope.

My generation - boomers - are big into conformity, aside from the few hippies of the older boomer years. They believe in following a set pattern, dressing a certain way, image, image, image. You raise a family, you drive a nice stodgy car in your later years. They were like babes in the woods to Madison Avenue, and still are.

Some Boomers are cool, like the ones on DU. Most that I know are either apathetic political no-nothings, or conservative idiots who watch FOX. Not all, mind you. My friends are not that way, but overall, I have no faith in the generation that just sat there and did mostly NOTHING to protect future generations' rights.

Boomers didn't do shit but help elect Reagan, then the Bushes. Not all Boomers, mind you, but enough that you can't count on them as a group to get up and change anything as long as they're comfy and have those stodgy cars.

The reason things have gotten so awful in some places as far as rights is that older people sat in their homes and said nothing. And if you're brave enough to ever say anything, people my age look at you like you're nuts. They try to talk you out of speaking up for the downtrodden. You're supposed to cower in your home in fear, I guess.

But that's not the country I was sold.

Edit to add: Still, I get up every day and the town is working and shops are open and the neighbor is taking a walk and the roads are salted and the schoolbuses are safely carrying kids. Most people in my area are working class or poor, but we mostly get along, try to care for one another. I don't think my community is unique.

There are a lot of good things going on, but the bad things cannot continue.

[marym625]

61. Thanks for the reply

I appreciate it.

I really don't see anything working. Not how it should. And it's just a matter of time before those things go in the shithole

I am at the very tail end of the boomers. Depending on what statistics your look at, I sometimes don't even make the cut. But I would say that 90% of the people in my high school class didn't give a shit what was going on politically. Usually I was told to STFU about things.

There was one stand out that I know about. There are probably more but one of my best friends became the head of the AFL-CIO Western Division. She was, at the time, the first female and the youngest person ever in that position. She is still very active. She coauthored the book, The New, New Deal.

I have lost hope for anything to change without some very radical movement

[KamaAina]

46. Got police state?

[marym625]

50. Why yes!

Yes, we do!

[MrScorpio]

52. The court and the prosecutor here are only interested in railroading a black guy for rapping...

It's what they gotta do to keep their phony-baloney jobs.

[marym625]

54. or, and this is just an idea,

They could go after actual criminals.