San Diego, CA -- A California prosecutor is trying to put a man in jail for 25 years to life, not for hurting someone, not for robbing a store, not for drugs, but for his choice or words in a song.
“Rap music, it’s just another form of communication that gang members use,” said Dana Greisen, chief of the District Attorney Office’s gang prosecution unit during a preliminary hearing in November of last year for rapper, Brandon "Tiny Doo" Duncan.
Another hearing is scheduled for Friday January 23, which will determine how the case proceeds.
Griesen believes that Duncan should be given a lengthy prison sentence because his use of fictional rap lyrics is so violent, they go beyond the point of creative license and into the realm of conspiracy.
According to CNN, Duncan, faces nine counts of criminal street gang conspiracy because prosecutors allege he and 14 other alleged gang members increased their stature and respect following a rash of shootings in the city in 2013.
Prosecutors point to Duncan's album, "No Safety," and to lyrics like "Ain't no safety on this pistol I'm holding" as examples of a "direct correlation to what the gang has been doing."
Prosecutors admit that they do not believe Duncan has committed a violent crime, nor to they have any evidence tying him to the crime in question, but that's not why they are going after him.
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California Penal Code 182.5 makes it a felony for an individual to participate in a criminal street gang, or to benefit from gang activity, and provides for 25 years to life imprisonment for violators. Prosecutors point to Duncan’s “No Safety” album and say the lyrics show that he’s guilty of breaking that code — that he’s obviously in a gang and profiting from gang activity.
All of these allegations are in spite of the fact that Duncan had a 9-5 job and moved out of the neighborhood in question, years ago. That and they have no evidence of Duncan committing an actual crime, ever — he has no criminal record.
The logic, or rather lack thereof, which the prosecutors are applying in this case, is that because gangs are violent and because Duncan's lyrics are violent, Duncan profits from violence that he does not commit and needs to be punished for it. Seriously.
By this logic, every single Hollywood writer, who has ever written any movie about gang violence, mob violence, old west violence, military violence, or any other fictional violence which is used to depict a real situation, should also be prosecuted.
In 1983, Oliver Stone made the movie Scarface, which portrays fictional characters who represented potentially real-life gang violence associated with Cuban immigrants in the 60's and 70's. One can assume that Oliver Stone profited from delineating the fictional and real gang violence. Where's his kangaroo court?
The trial, which is scheduled for February 9th, is nothing short of a direct attack on the freedom of speech in America.
“He could have been out several months ago,” states Defense Council Brian Watkins regarding a plea deal offered by the prosecutor that would have released Tiny Doo in exchange for jail time served and a lengthy probation. "But he knows he’s innocent, so we will be going to trial.”
Asked if Sect. 182.5 posed a chilling effect on American civil liberties, Watkins responded, “This is a very, very novel [legal] theory. If Brandon Duncan is allowed to be prosecuted for his speech, for his artistic expression, what’s next?”