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

The rap videos made by an alleged gang leader are admissible at his upcoming murder and racketeering trial, but so are the views of a defense expert who will testify that gangsta rap is not necessarily a statement of truth, a federal judge has ruled.

Prosecutors in the Eastern District U.S. Attorneys Office are seeking to show jurors the performance videos of Ronald Herron, the alleged leader of the Brooklyn “Murderous Mad Dogs” set of the Bloods, that include gang signs, guns and references to drug dealing and violence.

Herron’s defense said he made the videos as the fictional gangsta rapper Ra Diggs.

On Thursday, Eastern District Judge Nicholas Garaufis (See Profile) waved off defense arguments that admission of the videos breached First Amendment protections and evidentiary rules. In U.S. v. Herron, 10-cr-0615, Garaufis observed that courts have permitted the use of speech to establish motive and conspiracy, though not to depict a defendant as “morally reprehensible.”

Here, Garaufis continued, prosecutors seek admission of the videos to support their claims that Herron played a lead role in the alleged criminal enterprise and to show his familiarity with firearms.

“These proffered purposes go beyond painting defendant as ‘morally reprehensible’ and certainly have bearing on issues in this case,” he said.

Garaufis said prosecutors would have to show him and the defense exactly which clips they want to put into evidence before he approves them.

The judge also denied a prosecution bid to keep off the stand a defense witness, James Peterson, a Lehigh University professor who has written about hip hop culture.

The defense said Peterson would explain and clarify “to place the material in context” and assert that lyrics of artists in the gangsta rap genre are not necessarily true.

Prosecutors said Peterson should not be permitted to testify because, among other things, the “banal truism” that lyrics could be fictional was “hardly beyond the ken of the average juror.”

But “even seemingly obvious conclusions drawn from an expert’s scholarship and specialized knowledge can enhance a lay juror’s understanding,” Garaufis said.

He acknowledged that the “admission of the proposed expert testimony may seem novel. However, the study of the traditions and culture of various musical genres is not new, nor can the court dismiss such scholarship as quackery.”

Garaufis said Peterson would not be allowed to interpret Herron’s own videos and gave prosecutors a May 12 deadline to say if they wanted to call their own expert.

Jury selection is underway. Herron faces life imprisonment in a 23-count indictment. Opening statements are expected later this month.

The ruling comes amid national debate about whether violent rap lyrics and videos should be presented in criminal cases.

Garaufis noted that federal courts nationwide and some states’ courts have permitted admission of rap videos and lyrics. He said federal appellate courts have “admonished” trial judges when the lyrics or videos have a “tenuous connection” to the case.

In the defense motion to exclude the vast majority of Herron’s lyrics, they said his raps were not personal confessions but were broadcast with “manifest political and promotional intent” (NYLJ, April 28).

They cited the 2011 U.S. Supreme Court ruling Snyder v. Phelps, 131 S.Ct. 1207, where the high court barred civil liability against the Westboro Baptist Church because its protest at a dead solider’s funeral related to broad issues.

Herron’s attorneys said his rap lyrics were also related to broad issues and thereby off limits to prosecutors.

Garaufis said the defense read Snyder “too broadly.

“That case concerned the imposition of tort liability for the expression of speech itself. The court did not address the reach of the First Amendment in connection with the use of speech as evidence in criminal trials,” he said, adding that the Snyder court “expressly cabined” its ruling to that case’s facts.

The judge said Herron could argue the videos were meant as entertainment and used creative license, but that was a question about the weight of the evidence, not admissibility.

Garaufis said the videos had “profanity, misogyny, and references to violence that viewers could find objectionable or shocking.” But with charges like homicide, drug trafficking and weapon possession, the judge added, it “cannot be said that their content is ‘more inflammatory’ than the charged crimes.”

Assistant U.S. Attorneys Shreve Ariail, Samuel Nitze and Rena Paul appeared for the government. An office spokesman declined to comment.

Herron is represented by Robert Soloway of Rothman, Schneider, Soloway & Stern and James Neuman of Manhattan.