Louisiana prosecutors won’t be able to use lyrics as evidence of character under new law

The context to Mac Phipps’ music didn’t really matter to St. Tammany Parish prosecutors in 2001. Without forensic evidence to tie Phipps to the crime he was accused of, prosecutors turned to the 22-year-old New Orleans rapper’s music to paint him as capable of murdering 19-year-old Barron Victor Jr. at a Slidell club in February 2000.

And the use of his lyrics in court ultimately influenced the jury members’ decisions, the jury foreman told The Huffington Post in 2015. At the end of the trial, Phipps was convicted by a split jury of manslaughter and sentenced to 30 years in prison — despite numerous discrepancies from the start and facts that would later come to light, leading to clemency for Phipps and his release from prison in 2021.

Recent changes to Louisiana law, though, aim to protect artists from having their works used against them in criminal cases in the manner Phipps’ lyrics were once used against him. On Aug. 1, the Restoring Artistic Protection (RAP) Act went into effect, changing parts of state law to prevent creative or artistic expression from being used to establish a defendant’s character in court. Louisiana is the second state in the country to pass this kind of legislation, following California.

“When I was in prison, I was like, if there’s anything that I can do, I’m going to do whatever I can do to stop what happened to me from happening to anyone else,” says Phipps, who has spent much of the last year sharing his story and advocating for legislation like the RAP Act. “There’s much more work to be done, we have a long ways to go, but this was a great step forward.”

Creative or artistic expression, according to the RAP Act, can mean any form of art, including music, dance, performance art, and film. Murder ballads have been often cited as examples of now protected speech — no one would really believe that Johnny Cash shot a man in Reno, right?

But like many things in the American criminal justice system, the majority of cases where an artist’s words were used against them have involved young Black and Latino men — and most of those cases involve hip-hop.

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Mac Phipps had his lyrics used against him in court, resulting in 21 summers behind bars.

Phipps, who was then signed to No Limit Records, had been arrested for the 2000 killing of Victor. But without physical evidence, prosecutors relied on Phipps’ lyrics and witnesses — several of whom later said authorities bullied them to point the finger at the New Orleans rapper — to establish his character. Despite the fact Phipps had no criminal record, prosecutors argued that because he wrote violent lyrics, then it must be possible he killed Victor.

During his trial, they took verses from his songs “Shell Shocked” and “Murda, Murda, Kill, Kill” — which was influenced by the military movies Phipps grew up watching with his father, a Vietnam veteran — out of context and combined lyrics in a misleading fashion in order to paint Phipps as capable of first-degree murder

Phipps always asserted his innocence, and evidence has come out over the years to support him. In 2021, Gov. John Bel Edwards granted clemency, and Phipps returned home to New Orleans.

Along with Phipps’ case, there have been other high-profile examples in Louisiana where rap lyrics have been used during a trial, including No Limits rapper C-Murder and Baton Rouge-born rapper Boosie. And last year, Atlanta rappers Young Thug, Gunna and other members of their Young Stoner Life collective were arrested in a Racketeer Influenced and Corrupt Organizations (RICO) case where lyrics were cited in the grand jury indictment.

But while those cases caught headlines, amateur and up-and-coming rappers are most impacted by the practice, according to the book “Rap on Trial: Race, Lyrics and Guilt in America” by Erik Nielson and Andrea L. Dennis.

Through their research, Nielson and Dennis have identified around 500 cases from across the country where rap lyrics were used in court — and they acknowledge in “Rap on Trial” that there are many more cases to be found.

Corey 'C-Murder' Miller denied new trial for GAM 081123

Percy ‘Master P’ Miller talks about Corey ‘C-Murder’ Miller after the second annual Master P celebrity basketball game at Xavier University in 2018.

One of the earliest cases they found was from 1991, when Derek Foster was arrested by Chicago police for allegedly transporting drugs in suitcases. Foster denied he knew about the drugs in the suitcases, but at trial, prosecutors turned to the rap lyrics he had written in a notebook to say Foster had knowledge of drug terms — failing to acknowledge he could have picked up the terms through popular culture. He was convicted of possession with intent to distribute.

Another example cited by Nielson and Dennis in “Rap on Trial” was the 2012 trial of Alex Medina, a 14-year-old aspiring rapper in Ventura, California. Medina had been charged as an adult for first-degree murder, and during his trial, prosecutors asserted that violent lyrics he had written as well as recordings were “autobiographical journals.”

“It didn’t matter that the lyrics were written in verse and were clearly inspired by well-known rappers or weren’t even written by Medina (he had copied down lyrics to some of his favorite songs, which were then charactered erroneously as his own),” Nielson and Dennis write. “They were presented to the jury as confessions of pervious acts.”

Medina was ultimately convicted and sentenced to 25 to life.

Despite the massive influence of hip-hop in today’s culture, rap isn’t afforded the same protections as other forms of music.

The use of artistic expression in court has become increasingly controversial, and legislators in a number of states and at the federal level have been considering changes similar to California and Louisiana.

The bill to change Louisiana’s law was filed during the 2023 regular session by state Rep. Tanner Magee, R-Houma, with support from state Rep. Alonzo Knox, D-New Orleans. It passed both the state House and Senate with bipartisan support.

“It’s about the First Amendment; it’s about protecting free speech,” says Reid Wick about the bill’s bipartisan draw.

A New Orleans-based musician, Wick is a membership and industry relations representative with The Recording Academy and worked with Phipps and his wife, Angelique Phipps, to advocate for the bill. National representatives of The Recording Academy, the Warner Music Group, the American Civil Liberties Union (ACLU) and other organizations also pushed for the changes.

“It sounds really simple, and it is simple: We’re just trying to protect the creator’s right to create art,” Wick says.

The RAP Act amends the state’s Code of Evidence to include creative or artistic expression as not admissible in a criminal trial to prove the character of a person. There are exceptions, though: Artistic expression can be used to establish proof of motive, intent and knowledge when it’s directly related to the crime the defendant is accused of committing.

The final act signed by Edwards also is not as strong as the original House Bill 475, which included language prohibiting the use of any artistic expression unless the prosecution could prove before a judge that it was relevant to the specific crime at hand by clearing several criteria. The new changes also put the burden on the accused to provide “reasonable notice to the prosecution in advance of trial asserting that the evidence is creative or artistic expression.”

Only time will tell if and how the changes will protect artists in court, but Phipps, Wick and other advocates feel it’s an important step forward.

“For me, the next step is to get this passed on the federal level,” Phipps says. “I want to make sure this art can’t be used to judge your character. I want the same protections and the same benefit of the doubt that artists in other industries get.”

In 1998, ‘Shell Shocked’ introduced Mac to the world and climbed to No. 11 on the Billboard 200 chart.


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