Rap on Trial (State Bar of Texas Annual Meeting 2024)

Hello, and welcome to another episode of the State Bar of Texas podcast. We are recording live from our State Bar annual meeting in Dallas, Texas. This is your host, Rocky Deer, and guess what? I have Chad Baruch with me today, Chad Baruch from the law firm of Johnston, Toby, and Baruch in Dallas, and you want to hear this, all right? Here's what Chad was talking about at the annual meeting. It's part of the Appellate and Civil Liberties presentation. It's called "Hip-Hop on Trial, Texas Courts Confront the Use of Rap Lyrics in Criminal Prosecutions." Chad, wow, that's a mouthful. It is. It is. It is, both intellectually and literally. Well, I wouldn't know anything about intellectual, but let's talk for a second, but what got you to pick this topic? Was this where you just really bored one day? What inspired this? Well, this really began with a brief I filed in the United States Supreme Court that went viral about six years ago. I think now you're just showing off. Right, exactly. Oh, look at me. I don't really know what that means, but everyone else tells me it went viral. My children say it went viral. It was a school discipline case out in Mississippi, and a national group of hip-hop stars wanted to file an amicus brief, and professors, so we had about 50 rap stars and professors across the country who joined together and filed an amicus brief, which now is just known as the hip-hop brief. What was the gravamen? I just wanted to use the word gravamen. I understand. What was the gravamen? Well, I don't know, because you used the word gravamen, and now I'm very confused. It was a kid in Mississippi, basically, two of his female classmates accused some teachers of sexual misconduct. He thought the school swept it under the rug. Over December break, he's an aspiring rapper. He wrote and then rented commercial studio space and recorded a rap song about it and released it on his social media. The school eventually, after a great deal of discussion and debate in the community, suspended him. Oh, wow. Okay. The case went to the Fifth Circuit. He won in the Fifth Circuit originally. They took it on bonk, and he lost on bonk, and then it went up on cert petition to the Supreme Court, and that's when I became involved, representing these rappers and professors. What were the rappers and professors trying to advocate? The Fifth Circuit's opinion had gone in a direction that none of the litigants had anticipated. They interpreted it as a direct threat. They said his song was a direct threat of violence toward the teachers, which was kind of humorous because this was a multi-month process in Mississippi. The school board really had a hard time deciding whether they had the power to suspend him, and they let him go to school the entire time. He had a perfect disciplinary record. This was a good kid. Even the teachers, nobody had raised any issue of a threat, but the Fifth Circuit interpreted his rap lyrics literally. When I read the story about it in the Dallas Morning News, even I, with my very limited understanding of rap music, I knew you don't interpret rap music any more than you would interpret any other genre of music, but I'm sure you don't really think the Dixie Chicks killed Earl. I mean, we just don't do that with other art forms. So anyway, that was the point. The rappers and professors wanted to explain the nature of hip-hop to the Supreme Court, so it wasn't a legal brief. It was really a brief about the history and meaning of hip-hop. I see. But the title is "The Use of Rap Lyrics in Criminal Prosecutions." Yes. It didn't come up. So we had a case here in Texas out of Dallas in Ray Hart, in which a guy named Larry Jean Hart was convicted of capital murder. He had given a ride to four other people who committed a murder, and he alleged that he didn't know they were going to do that. But during the trial, he's also an aspiring rapper, and like many aspiring rappers, would both record his own music and release it on his social media, and then he also had some social media videos of himself just lip-syncing songs by commercial rap artists. And the judge here, for a variety of reasons, allowed those videos to come in. The prosecution wanted to show those videos to the jury, and the judge allowed that. The case went up to the Dallas Court of Appeals, which affirmed two-to-one. One of the justices descended saying she felt the prejudicial effect of those videos was just overwhelming, and then it went up to our Court of Criminal Appeals, which for those listeners who don't know is our Supreme Court for criminal cases in Texas. And they became the first high court in the country in a 5-4 decision to reverse and hold that these types of rap videos and lyrics are not generally admissible in criminal trials. Okay. Okay. So they're, in a sense, to put it very simply, they sided with the rappers. They sided with the rappers. Yeah. Okay. And one of the points they made was, again, we wouldn't allow any other genre of music. If you lip-synced to Johnny Cash saying, "I shot a man in Reno to watch him die," we wouldn't introduce that at your criminal trial. He didn't literally fall into a ring of fire. Right. Exactly. How are you singing now? Yeah. Okay. So is the position that rap is treated differently than other types of music? Yeah. So that's a really insightful question, because one of the concurrences in the Court of Criminal Appeals, Justice Richardson, concurred separately. And by the way, any of your listeners who are interested should read the concurrence, because it's really entertaining. But what he did was, he took about a dozen different genres of music, everything from blues to rock to country to folk. And he lifted lyrics from very successful, recognizable songs that actually, if you take them literally, describe the commission of a crime. But it's wildly creative. So one that I never thought of, he cited "Private Eyes" by Holland Oates. And I never thought about the fact that it's about a stalker. Oh. He cited the anti-stalking statute in the "Penal Cope," right? Okay. And he just did that with about 25 or 30 very recognizable songs. That's a lot of work to put in on an opinion. It was. Fabulous. I'm too lazy to ever do something cool like that. Yes. I mean, it must have been wildly fun for his clerks and staff attorneys. It was very creative. They used disco inferno as an example of an arson citation. But that's the point he was making, is we wouldn't do this with any other music genre, and really we wouldn't do it with any other art form. Okay. So now I'm going to play Devil's Advocate for a second. If you look at the image that a lot of rappers try to portray, they may not be like this in real life. They may not be like this in their private lives. But the image is often, "Hey, I'm bad. I'm a bad guy," meaning, "Don't mess with me. I can take care of myself." Of course. Of course. "I can incite violence if I need to." And that's part of the whole tough guy image of rap. So in a sense, whereas Johnny Cash is just some guy up there with a guitar trying to sing, rap artists are trying to portray themselves as having this tough image. So again, if you're trying to look at this from the perspective of a lay person, couldn't they be forgiven for kind of thinking, "Okay, maybe this is a more violent art form. I mean, how do you kind of overcome that?" So I think a lay person maybe could. Probably a trial judge could not. Let me give you a couple of examples. Sure. So think about Dennis Frans, the old law and order, NYPD blue actor. Oh, yeah. Okay. So Dennis Frans is a guy who made his whole career playing tough guys. I mean, his whole image was of the sort of misunderstood tough guy. And if you ever heard him actually interviewed, he was very soft-spoken. He was a gardener. Right. I mean, that was just -- he was diametrically opposed to me. Danny Trejo was the same way, right? And we would never -- if he had ever been accused of a violent crime, we never would have permitted them to play video of him playing the detective on NYPD blue. But it's the same thing. Building a persona for his career that has nothing to do with, you know, his propensity to violence. And Johnny Cash is such a great example because I always say, you know, think about your first image if I say Johnny Cash and then if I say NWA. And the reality is if you owned a Hilton hotel, you definitely wanted NWA staying there over Johnny Cash. You know, because he -- you know, I love Cash. I mean, he's a poet and phenomenal, but he was an addict. And he had many episodes of violent destruction in hotel rooms. And you know, he had his demons. And as far as I know, NWA never trashed a hotel room. So you've hit it right on the button in terms of the stereotypes people have of rap. And they're just like rock and roll. I mean, one of the pushbacks I get a lot is on the misogyny, right? But it's so misogynistic. I say, well, were you listening to sex drugs in rock and roll? Because the first word there was sex, and a lot of that music was misogynistic. Classic rock. Sure. And so, you know, I don't want to spend an hour answering one question, but there's a really fascinating study where they take a lyric, same lyric, and they give it to two groups, and they tell the first group it's a country lyric. Okay. And the second group, it's a rap lyric. And how do they interpret it? And the first group says it's completely non-threatening, and the second group says I'm very frightened. Okay. And it's a Kingston Trio lyric. Got it. Okay. So it's pretty interesting. Now, this is fascinating when we're talking about, you know, stereotypes or imagery or how things are treated. From an appellate law standpoint, what were you trying to convey to appellate lawyers about what they need to learn as advocates when it comes to this particular hip-hop case? So there's the cool factor that went viral, but then there's also the more cerebral aspect of being an appellate lawyer. So what was that latter message that you were trying to get from? So it's really, if I'm being completely honest, my presentations on this over the last several years are honestly focused more at the judges. I'm trying to sensitize the judges to this issue. And you know, I know for certain, at least some of the judges involved in this case have heard me speak about this issue over the years. And so I think, and it's not just me, there's, you know, professors much, much, much. Eric Nielsen is the guru in this area, Andrea Dennis, I mean, they've just done phenomenal work in this area. And just really trying to sensitize folks to that issue. And then also the trial lawyers, because, for example, Professor Nielsen speaks as an expert witness. He testifies in this area frequently on the dangers and how to interpret rap. So we want trial lawyers to know that you actually can bring an expert in on this if the prosecution is trying to use this type of thing. Professor Nielsen is someone who can come in and explain to a jury why you don't interpret this literally, and you shouldn't rely on it as evidence of guilt. Well, okay, so now we're kind of getting into, we're getting into the more law practice aspects of it, which I'm sure many of our listeners will be very interested in. So you've talked now really about the trial strategy, which is you bring in an expert witness, assuming you can afford that expert and so on and so forth. But you bring in an expert to kind of desensitize the judge, possibly the jury, on the fact that you've got a rapper there. From an appellate law standpoint, how do you brief an issue like that? Well, a lot of it is data-based. Now, there are not, there's a growing body of case law. So definitely, for example, the majority opinion in Texas in the Court of Criminal Appeals, Justice McClure, wrote that opinion. And he cited a number of similar decisions, mostly from intermediate courts around the country, state courts around the country. So there's a growing body of case law that you can rely on to sort of build this idea that multiple courts are, the courts really are starting to scrutinize this very carefully. So there's that and then there's also a pretty good bank of law review articles now that cite various studies, like the one I described at the Kingston Trio, things like that. And so there's a fair amount of data out there now for appellate practitioners to rely on. Do you see this as a constitutional issue? Is there some other, in other words, what kind of error is being preserved when you bring this up? Yeah. It's a constitutional issue in that the defendants being deprived of a fair trial because of unduly prejudicial evidence. But it's really that's where the rubber meets the road is in that probative versus prejudicial category because, to be fair, the evidence, much of the evidence, not in every case, but in a lot of cases there is at least some probative value. So in the Hart case, for example, the chief dissenting justice believed that the defendant has sort of opened the door to this evidence. That was one of his important arguments, was that he didn't think this just occurred in a vacuum. He said the defendant is the one who started this discussion. And so there is probative value in what you're engaging in that probative value versus prejudicial effect discussion. Is there, because I know appellate lawyers love to talk about this. The favorite words are preservation of error. So how do you preserve error when you think a client, whether it's hip hop or any other art form, when you think they're being misjudged or stereotyped incorrectly, what's the best way to preserve that issue so that you can take it up effectively on appeal and raise these issues? So the good news is in the criminal defense context, this is generally you're on the receiving end and so the prosecution is seeking to introduce it. So the first step, obviously, is just object and be specific in your objection. So you want to object on the basis, number one, probably just straight up relevance, followed by the backup. Any probative value would be outweighed by prejudicial effect. And then the critical second step that gets lost sometimes is when you want to listen up. Yes. Yes. Get a limit. If you lose that fight, ask for a limiting instruction because one of the dissents in Texas did go right to where you're going and said I believe he waived any error by failing to request a limiting instruction. I see. Okay. The limiting instruction would effectively say to the jury, understand this is being used for a very narrow purpose. Do not now take this to mean that this is a bad defendant. Right. You very clearly instruct the jury instead of just letting them sort of free form it in terms of their reliance on it. And then if you lose on that issue, at least you preserved it now for an appellate issue. In your view, is this more of an equal protection issue or is this a due process issue? No, I think it's probably just a fair trial issue. There are definitely racial components of it. There's no question about that. Lawrence asked me yesterday about don't we kind of do this with other, having other types of music suffered these sorts of misconceptions and attacks. And that's absolutely true. Elvis the pelvis, right? But there's a racial stereotyping component being overlaid here that isn't, of course, present. Well, it was a little bit present with Elvis, actually. That was one of the reasons they all hated him was he was singing black music, right? But here it's much more prevalent and prominent. I mean, it's kind of at the heart of the issue that rap, there's, there's a lot of studies out there that say, and one of the other things about rap music is that it tends to activate racial stereotyping in ways that other music just don't. Being very candid, I've never listened to rap much. It's never been really, it's really never been up my alley, if you will. But I remember growing up and hearing even, even other black celebrities denigrating rap music. Right. You know, I remember Bill Cosby. There's a lot of, but in the 80s, Bill Cosby was riding high. You know, he was America's dad. He used to denigrate rap music. And so it was, I think there's just, there's this consciousness out there that is very against rap music, thinking it's this violent art form, if you will. I guess the question now becomes, from here on out, do you think the landscape is changing or is there still, are there still a lot of negative stereotypes towards hip hop artists? I think both. I think a lot of it remains. But you know, what another thing people don't really think about it is, and this is undeniable, it is oppositional music politically, right? I mean, a lot of rap music is angry and violent because they are rapping about things that make them angry and violent. Police misconduct, decaying in their cities, deteriorating schools. So it, it expresses an oppositional culture. So it often is angry and sometimes is violent. There's no denying that. It sounds a lot like appellate law. Right. Angry and violent? Yes. Yeah, that's awesome. You have, you are completely lacking in merit, sir. That's it. Yeah, I get it. Well, unfortunately that is all the time we have for this particular installment of the State Bar of Texas podcast. I want to thank Chad Baruch for joining us. Thank you, Chad. Well, thank you for having me. Absolutely. And next time you come, you're going to have to do your Eminem rap for us. I got it. I heard that, that took place in the building earlier today. And also I want to thank you, our listeners for tuning in. If you like what you heard, please rate and review us wherever you get your podcasts. I'm Rocky Deer. Until next time, thanks for listening.