How YNW Melly’s “Murder on My Mind” could be used in the courtroom

Rap on trial.

February 20, 2019
How YNW Melly’s “Murder on My Mind” could be used in the courtroom

Jamell Demons, better known as YNW Melly, was arrested last Wednesday, February 13, and charged with two counts of first-degree murder. According to police in Miramar, Florida, an investigation “supported by forensic evidence” concluded that Demons shot and killed two of his lifelong friends — Christopher Thomas Jr., aka YNW Juvy, and Anthony Williams, aka YNW Sakchaser — last October. Police claim that Demons fatally shot both men and, with the help of Cortlen Henry, aka YNW Bortlen, “staged the crime scene to resemble a drive-by shooting.”

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Shortly before turning himself into police, Demons wrote on Instagram that he was innocent, that he’d lost his “two brothers” in the killing, and that there were “a lot of rumors and lies” flying around. But that didn’t stop many people on social media from all but declaring the 19-year-old rapper guilty. Hours after news broke of Melly’s arrest, thousands of people on Twitter and Instagram — as well as some of the less scrupulous gossip sites — clumsily linked the arrest to Melly’s breakout 2017 hit “Murder on My Mind,” a song released a full 18 months before Thomas and Williams were killed. As my colleague Ben Dandridge-Lemco wrote in an essay last week, ABC News even used the song title in the headline of their first news piece about Melly’s arrest.

This dangerous link between life and lyrics is unlikely to shock Melly. “Murder on My Mind” — a song that combines punishing loneliness with vivid and brutal murder fantasies — came out while he was still in prison, where he served a one-year sentence after being involved in a shootout near his high school in Vero Beach, Florida. Shortly after Melly was freed in 2017, he went back to jail for violating his probation. He told The FADER last year that, though prosecutors got him on a handful of minor infractions, his return to jail hinged on the actions of the state attorney, who read the second verse of “Murder on My Mind” to the courtroom.

As Ben wrote last week, it’s easy to imagine prosecutors dredging up the lyrics to “Murder on My Mind” once again — if it seemed to work when Melly was up for a handful of misdemeanors, it’ll surely work when he’s on trial for double homicide. But the implications of this sort of “evidence” are disastrous not just for Melly — who stands accused of a grotesque crime and, police claim, has forensic evidence against him already — but for the treatment of rap artists in courtrooms across the United States.

Charis E. Kubrin, Professor of Criminology, Law and Society at University of California, Irvine, has dedicated much of the past half-decade to researching the use of rap lyrics in courtrooms and fielding calls from defense lawyers who want their clients' art to be deemed inadmissible. She’s published a series of studies on the issue, including the now-seminal 2014 paper Rap on Trial, alongside Erik Nielson, and she’s set up a website, endrapontrial.org, where anyone can access her trove of research materials.

Kubrin wants to see rap lyrics excluded from the courtroom in almost all cases. Her research indicates that the benefits of using lyrics in court are far outweighed by their misleading impact when read out to a jury. No other genre, she says, is treated as plain autobiography — David Byrne wasn’t actually a “Psycho Killer” — but rap musicians at every level have to contend with their lyrics being read as incriminating journal entries. Jurors and judges are unlikely to understand the conventions of rap, the exaggerations and fictions built into its foundations, or even the line between art and artist. “Even when defendants use a stage name to signal their creation of a fictional first-person narrator, rap about exploits that are exaggerated to the point of absurdity, and make use of figurative language, prosecutors will insist that the lyrics are effectively rhymed confessions," she and Nielson wrote in a New York Times op-ed in 2014. “ No other form of fictional expression is exploited this way in the courts.”

The FADER spoke with Kubrin over the phone yesterday afternoon to discuss YNW Melly’s case and the use of rap lyrics in the courtroom more broadly.

The response on social media to YNW Melly’s arrest was immediate. Can the public turning against YNW Melly have an impact on this case?

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Absolutely. I got interested in this issue when I was asked to be an expert witness in a case involving an aspiring rapper who had his lyrics used against him. The charge was communicating a terroristic threat, and, after reading through dozens and dozens of pages of his lyrics, I was convinced that the assumption the prosecutor was making — that the lyrics are these autobiographical confessions of planned, threatening behavior — was just a complete misunderstanding of rap and a mistreatment of this form of artistic expression. Since then, I've been involved in a number of these cases, each on slightly different, but all of them defending lyrics coming in as evidence of motive or intent with respect to an alleged crime.

My concern with this practice led me to question how people might be treating the lyrics once they're entered into the court, and, in particular, how prosecutors are treating them and what the lyrics mean for jurors. That led to a series of experimental studies, investigating stereotyping and bias around rap lyrics.

In an interview you gave a couple of years ago, you said you were heartened by the fact that, generation by generation, this seemed to be getting better — that people were understanding the genre more.

Yeah, for sure. That turned up in our experimental study.

Does it worry you to see the way in which some people — many of whom seem to be quite young — have assumed YNW Melly’s guilt based solely on his lyrics?

It's easy to make these linkages, frankly, because of the way rap music is. Rap music is often first-person narrative, it involves storytelling, grandiose claims, threatening language, all kinds of metaphors and hyperbole. People who listen to rap music and are familiar with it understand that not everything a rapper is saying is true. People who listen to the music know that those are just common kinds of genre conventions of the lyrics — that if rappers were guilty of even the tiniest fraction of the violence and threatening behavior that they're putting in their lyrics, we'd all be in big trouble.

But most people don't have that nuanced appreciation of rap music. It's easy to conflate the artist with his or her person. And other music genres and artistic genres get a pass. I mean, Quentin Tarantino, his movies are just full of violence and threats and all sorts of things. No one ever assumes that Quentin Tarantino is doing that sort of stuff in his real life. Rap doesn't really get that pass as a form of artistic expression. Instead the assumption is, when prosecutors argue this in courts, that rappers are living the lives that they're talking about. That's true in some cases, but, in the vast majority, it's not.

From a legal standpoint, does the fact that Melly's lyrics have been used against him before in court set some sort of precedent? Might prosecutors or a judge feel more empowered to use it again?

My initial question was, "Why were the lyrics allowed in if they had no relevance to the particular changes at hand?" My understanding was that these were very low-level charges [when Melly was sent back to jail for violating his probation]. My opinion is that [lyrics] should almost never be involved in cases, unless — and this is a very, very small percentage of the time – there is a dramatic correspondence between the lyrics and the facts of the case.

Now, in the case of the new charges brought against Melly, one may make the argument that there's parallels between what the lyrics say and what the facts of the case are. But based on my research, I think that mainly these cases should be tried using traditional forensic evidence. In other words, the lyrics don't really need to come in if you have the proper forensic evidence. Why are they even being introduced? I say that because the lyrics do more damage than good, and this is what my research has shown.

We did a number of experiments with subjects where we introduced them to violent lyrics and then we told some people they were rap lyrics, told other people they were country music lyrics, other people they were heavy metal lyrics. We asked the people in our experiment to evaluate both the lyrics and the songwriter who wrote the lyrics, on a number of dimensions. In terms of evaluating lyrics, we asked them: How threatening or dangerous are these lyrics? How true do you think they are? Should they be banned from the radio? Of course, when they were rap lyrics, or perceived to be rap lyrics, everybody thought negatively about them. We asked about characteristics of the songwriter based on the lyrics and the different genres: How smart do you think this person is? How aggressive or threatening do you think they are? Do you think this songwriter has a criminal record or could be involved in a gang? Once again, we found that those who thought they were reading rap lyrics had much more negative evaluations of the songwriter, compared to people who thought the songwriter was writing country music lyrics or heavy metal music lyrics.

So, the conclusion from all of our experimental studies — Adam Dunbar and I — is that there's a lot of bias and stereotyping that go along with the introduction of lyrics into these cases, and because of that, the probative value of introducing these lyrics in criminal cases is probably outweighed by the prejudicial impact that they have. And that's why my general conclusion is: Don't include them. If the guy is guilty, find the proper physical, forensic evidence, and prove it. Don't bring these stereotypical images around rap music in to do the work of your case.

So, In practice, a prosecutor will try to bring a defendant’s lyrics in and submit them as evidence, and a judge decides whether or not it's admissible.

That's exactly it. So, a prosecutor will introduce the lyrics in court, and a judge will agree to admit them. Really, for a long time, judges were just rubber-stamping what the prosecutor was saying about the rap lyrics. The prosecutor would say things like: “These are nothing more than autobiographical statements; rappers are bragging about the crimes that they're committing; this is not art or entertainment, this is autobiography.” And the reality is that rap music is a form of artistic expression. It has genre conventions, it has storytelling. So, if you present these as autobiographical statements, the judge lets it in.

I liken it to never having seen a horror movie, and then you're taken in to go see, like, Texas Chainsaw Massacre or something. If you don't listen to rap music, you don't know anything about it, and then you hear some of the lyrics or see the videos, it can have a very strong impact on you. I've been listening to rap music my whole life, so for me I know what these conventions are. Jurors, especially older jurors who are mainly hearing these cases throughout the United States — they do not necessarily know those genre conventions. That's why it's important to have an expert witness in there to say: “Look, I know it looks threatening when he's pointing a gun at the screen, but this is what you see in any basic gangsta rap video,” for example.

And so defense attorneys I do think try to mount a defense to exclude the lyrics, but for the longest time there was no research arguing why it was prejudicial or problematic to include that, and that's why I got involved in doing the research — so that when defense attorneys are writing their pre-trial motion against the inclusion of the lyrics, they have some evidence to support their arguments.

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So, it also falls on the defense attorneys to make a case for the fact that lyrics shouldn't be admissible.

Exactly. And if they can mount a good defense and convince the judge that the prejudicial impact outweighs any probative value, then the judge should say: “We don't really need the lyrics. They're irrelevant to the case and they're biasing.” The problem is that defense attorneys themselves don't necessarily know much about rap music, and so mounting that defense has been challenging.

One implication of my research is that judges consider what value is added by including the lyrics in. If including the lyrics in helps the case in terms of identifying a motive for behavior — that sort of thing — and that any value by adding those lyrics in outweighs any prejudicial impact that including those lyrics will have, well, that at least is an informed decision by the judge. But for too long the decision by the judge has been not particularly informed, in my opinion — it’s been heavily influenced by the prosecutor.

Have you found the situation improving over the past few years?

For a few years there, a couple of years ago, I thought [so]. For a while, I was getting contacted every single week, and it got so bad that I created a website — endrapontrial.org — where I put all the resources that I knew about in one place. I started compiling all these resources and put them on a webpage, and for a while I stopped getting contacted by attorneys. This issue got a lot of attention in the media, and I thought, “This is kind of winding down — this is great.” But lately I've been getting called by more attorneys asking to testify, so it's not really going away like I was hoping it would.

How many cases on average are you called about?

I mean, I've testified in like five or six cases — actually testified. I've consulted in probably five dozen. And some of them don't go to trial, some of them go to trial but they end up not calling me, some of them are cases that are still going on that I'm dealing with. I mean, it's just really difficult to get a number of cases where this is happening, because there's no database of this obviously, so the only way that I know to count them is either I'm being involved in them or I'm reading about them in the news. Of course, that's just the tip of the iceberg, because the ones that are in the news are the high-profile ones like Melly. There's probably so many more of these cases that one never hears about, where they're using the lyrics and inducing someone into copping a guilty plea, for example, so it never goes to trial. Or there's cases where there's no appeal filed, so I don't hear about it through LexisNexis or some other source. So it's a slippery number, but too many is my answer.


How YNW Melly’s “Murder on My Mind” could be used in the courtroom