Ra Diggs in a still from the video for Eulogy
Ra Diggs in a still from the video for Eulogy (YouTube)

Reflecting a spreading national concern among defense attorneys, a heated legal battle is being waged in a Brooklyn federal court over the admission of an alleged gang leader’s violent rap lyrics and videos in his upcoming murder and racketeering trial.

Eastern District Judge Nicholas Garaufis (See Profile) is likely to rule on the issue before opening arguments get underway in the prosecution of Ronald Herron, whose rapper name is Ra Diggs, who faces life in prison on charges of murder, racketeering and other counts as the alleged head of Murderous Mad Dogs, an arm of the Bloods. Jury selection in U.S. v. Herron, 10-cr-615, is scheduled to begin April 29.

Herron’s defense has argued that the “vast bulk” of their client’s videos should be excluded, saying they are irrelevant, inflammatory and violative of Herron’s First Amendment rights.

“Allowing the jury to hear the defendant’s rap lyrics and the Ra Diggs TV speeches undervalues the importance of freedom of speech, and will necessarily have a ‘chilling effect’ on free expression. Moreover, admitting fictional, artistic writings to prove ‘state of mind’ or some similar evidentiary concepts will fail to provide the ‘breathing space’ which the defendant’s work should be afforded” under the First Amendment, Robert Soloway of Rothman, Schneider, Soloway & Stern and James Neuman of Manhattan wrote in their exclusion bid.

The Eastern District U.S. Attorney’s office countered that Herron “built a drug-dealing enterprise through ruthless violence and intimidation, terrorizing a community in the process, and then wrote about it, highlighting his real-life criminal conduct to burnish his credentials as a real-life gangster. That he put his admissions to music, or made them rhyme, or presented them in documentary-style videos does not innoculate him against their use against him at trial.”

The admission of rap lyrics in court proceedings has become controversial in recent years. The New York Times, for example, reported on March 26 about three dozen cases over the past two years where violent lyrics have played “prominent roles,” despite concerns in the academic and defense communities, who say the lyrics inflame jurors who do not understand a genre where rappers adopt tough-talking personas but not necessarily chronicle real events.

Earlier this monh, the New Jersey Supreme Court heard oral arguments challenging the attempted murder conviction of a defendant named Vonte Miller at a trial during which the jury heard violent lyrics. An intermediate appellate court found that the use of the lyrics was improper because their probative value was outweighed by potential prejudice.

Prosecutors told New Jersey’s high court said that the lyrics were relevant because, in the word so of one, the lyrics showed “what he thinks and believes.”

But Miller’s attorney argued that the lyrics caused “massive prejudice. They had nothing to do with what actually happened,”

Appearing as amicus, the New Jersey chapter of the American Civil Liberties Union argued that the spreading use of rap videos by prosecutors could have a chilling effect on free speech. In Brooklyn, Herron’s own court papers point to a “large body of scholarly material” endorsing a “cautious approach” in admitting rap lyrics.

But the government said Herron was trying to “shoehorn” the case into broader debates on the use of rap lyrics in criminal trials.

“It bears emphasizing that this is not a case in which the government is offering generally violent lyrics to shore up its proof of the defendant’s state of mind during the charged offense, nor does the government’s case rise or fall on the video evidence,” said prosecutors, noting that in an approximately five-week trial, any video presentation and interpretation of content would last three hours.

‘Direct Proof of Crime’?

According to the government, Herron led the Murderous Mad Dogs and his videos show his top-level status, his relationships of trust with co-conspirators and mention of specific crimes to bolster a fearsome reputation.

Herron allegedly shoots semi-automatic weapons in one video, which, the government said, corroborated a claim he was familiar with firearms.

In other videos, Herron brags about associates’ convictions, his acquittal on an obstruction of justice charge and his status as a “big homie” who “put in [his] own work” but could make others “kill for [him],” prosecutors said.

“I’m gripped up, I’m vest up … I’m ready for war man, on all fronts man,” Herron raps at another point.

The government called the videos “quintessentially relevant evidence constituting direct proof of the charged crimes.”

But Herron’s attorneys argue that no factual accuracy could be pinned to Herron’s music, made as the “fictional gangsta rap character, Ra Diggs.”

No admission of actual conduct could be found in Herron’s words, just as Johnny Cash did not “shoot a man in Reno just to watch him die” and Bob Marley did not shoot the sheriff, though both sang that they did, the defense said.

At the evidentiary level, the videos would be “highly inflammatory” and lack “any discernible probative value,” said the defense.

While Herron rapped he was a “boss” because he had gone “head to head with [former Brooklyn District Attorney] Charles Hynes office and never lost,” his boasts about past encounters with state prosecutors were “irrelevant” to the federal charges he faced now and were meant to strike a “Teflon Don” pose to increase his marketability, the defense argued.

Though rap lyrics have been admitted as evidence in prior cases, the defense claims the distinction here is that Herron’s lyrics were not “crumpled pages” that police discovered when executing a search warrant, but “spoken loudly and deliberately with manifest political and promotional intent,” thus cloaking them in First Amendment protections.

Herron’s attorneys pointed to a 2011 U.S. Supreme Court ruling Snyder v. Phelps, 131 S.Ct. 1207, in which the grieving father of a soldier killed in Iraq sued the Westboro Baptist Church for protesting his son’s funeral with signs like “Thank God for Dead Soldiers.”

The Supreme Court said the question of whether the First Amendment barred liability hinged on whether the speech was a “public or private concern.”

In the case of the protesters, the Snyder court said their signs “plainly relate[] to broad issues of interest to society at large.”

Likewise, the defense said Herron’s own video, which at points mentions the fatal police shootings of Amidou Diallo and Sean Bell, were a “commentary on urban crime and violence, drug wars and the utter lack of hope in the inner city he knows.”

By relating to the “broad issues” contemplated in Snyder, the defense said Herron’s lyrics needed the First Amendment’s special protections.

But prosecutors counter that it would be an error to invoke Snyder because that case pertained to a civil suit where the plaintiff sought to hold the protesters liable for the content of their speech, said prosecutors.

“Here, the government is not seeking to punish or otherwise hold the defendant liable for the content of his speech; rather, his speech is being introduced as evidence of independent criminal conduct,” said the prosecution.

Eastern District Assistant U.S. Attorneys Shreve Ariail, Samuel Nitze and Rena Paul appeared for the government.