When a defendant has performed rap lyrics about crime in songs and videos, is that evidence of real criminality?
On the evening of June 12, 2012, 19-year-old Melvin Vernell III, a rapper who went by the name Lil Phat, was shot to death in a parking lot outside an Atlanta-area hospital. At the time, his girlfriend was inside giving birth to their daughter.
Investigators identified the motive as retaliation for a drug theft. They said Vernell had stolen 10 pounds of marijuana from two men, Gary Bradford and Decensae White, the latter a former college basketball star who had played for Bobby Knight at Texas Tech for a bit before landing at San Francisco State University.
Bradford, investigators concluded, was a gang leader who had ordered the murder. Prosecutors charged him with seven counts related to the crime, and he went to trial in the summer of 2014.
In the case against Bradford, Fulton County, Ga., prosecutors introduced statements from a powerful figure: Eldorado Red, Bradford’s alter ego. It’s both the name by which Bradford was known on the streets and under which he recorded rap music with dreams of making it big. Eldorado Red is brash and menacing, a remorseless career criminal. In music videos released on YouTube, he parades around in red colors associated with the Bloods, a violent street gang, flashing weapons and stacks of cash from the seats of expensive cars.
“I’m El Jefe,” Eldorado Red brags in “I Supply Your Town,” a song about selling drugs. “Meet the dealer. Bricks and pounds when I come around.”
In another song, called “I Got 100 Shooters,” Eldorado Red warns, “Go against the mob, you get your ass knocked off.”
To prosecutors, these songs read like clear-cut confessions to drug dealing and murder and lined up remarkably well with the facts of the Vernell case. They pointed the finger right at the creation Eldorado Red in their efforts to convict Gary Bradford. In fact, “Eldorado Red” was the name by which they often referred to Bradford throughout the trial.
This distinction between Gary Bradford and Eldorado Red would blur often during the trial, which is how a University of Richmond professor with no relation to the case found himself in the middle of it. Erik Nielson, an associate professor of liberal arts in the School of Professional and Continuing Studies, has become a sought-after resource for defense attorneys and national media because he was among the first to identify a growing trend: prosecutors introducing lyrics written and performed by criminal defendants as evidence against them in trials.
By conflating reality and art, he argues, prosecutors are manipulating the prejudices of some jurors to persuade them to hold rap artists responsible for the fictional confessions of their artistic creations. He says the scrutiny rappers face in the criminal justice system is unique among musicians and other artists, a discrepancy Nielson says is tied to broader issues of race and justice in the United States.
It is tempting to call Nielson—a nearly middle-aged white college professor from western Massachusetts—an unlikely champion of this cause, but that would misunderstand how deeply rap music, and the hip-hop culture from which it springs, has so thoroughly infused American culture in the second decade of the 21st century. Among its self-identified fans are both President Barack Obama and one of 2016’s major Republican candidates who had hoped to succeed him, Florida Sen. Marco Rubio, who once told a reporter that one of his three favorite rap songs is one of the genre’s most famous profanity-laced expositions on criminality, N.W.A.’s “Straight Outta Compton.”
Nielson grew up in Wendell, Mass., about an hour north of Springfield. His parents divorced when he was a toddler, and his mother, a preschool teacher, raised him as a single parent in an area so rural that his winding bus ride to school took an hour.
“I grew up not having very much, so I think I had something of a chip on my shoulder,” he said. “And the way I expressed that—aside from really horrible behavior when I was little— was academically because I was always very good at school.”
As an undergraduate at the University of Virginia, he began to come into contact with the ideas that would later influence the development of his research and teaching. Courses that touched on jazz, sociology, and African-American literature were vehicles for exploring questions about race and inequality. It was the time of the O.J. Simpson trial and The Bell Curve, a controversial book that ignited national debates about links between intelligence and race.
“College was an awakening for me,” he said. “I went in thinking I would be a government major, maybe political science, and then a lawyer or something. College totally changed that. As soon as I started reading Marx—it wasn’t that Marx had it all right—it was just a whole new way of thinking about what I had believed was true.
“It forced me to start looking at things through a different lens. When I did that, I thought, ‘Wow, what I believed was true about the world is definitely not true,’ and so I wanted to devote myself to uncovering what I was missing. But rap wasn’t part of that. Back in the ’90s, it didn’t occur to me you could study rap. You listened to it.”
From there, he went to London to complete a master’s in Renaissance literature, focusing on Shakespeare, when he found himself reconnecting with the rap music he’d enjoyed as an undergraduate student.
“I’m literally in the British Library typing something about Hamlet, listening to Outkast [the Atlanta-based rap duo of “Hey Ya!” fame]…Being so immersed in Shakespeare heightened my appreciation for and interest in wordplay, in really compelling, funny, often bawdy narratives that ran against the grain. I’d always liked rap; I’d just never intellectualized it. It was the first time I began thinking about it in poetic terms and historical terms.”
That put Nielson on the path to realizing he could do a doctorate that focused on rap music, a subject that few scholars were studying at the time. His eventual doctoral adviser—“a towering Dutch guy at University of Sheffield” in the U.K. named Duco van Oostrum— had him set his sights more broadly.
“You can do rap, but you have to ground it in literature,” van Oostrum told him.
The dissertation that emerged analyzed the relationship between law enforcement and African-American art in the United States. Nielson’s main argument was that close readings of two centuries of African-American poetry— from antebellum slave spirituals through the lyrics he was hearing in rap songs —reveal a sustained response, both obvious and subtle, to the omnipresence of surveillance.
“If you want to find Jesus, go in de wilderness,” are the lyrics of one particularly influential spiritual that Nielson wrote about as he traced this argument. Nat Turner, who in 1831 led the country’s most widely known slave rebellion, is said to have used the song as a form of coded language to gather his co-conspirators. For Nielson, the song exemplifies a reaction to the extraordinarily watchful eyes under which enslaved people in the U.S. lived—the notion that salvation lies in getting to the wilderness, beyond the reach of the people and society that oppress you.
For a prose example, he turned to a passage in Harriet Jacobs’ Incidents in the Life of a Slave Girl that describes what Nielson characterizes as the “inescapability of Dr. Flint, her master”: “If I went out for a breath of fresh air, after a day of unwearied toil, his footsteps dogged me. If I knelt by my mother’s grave, his dark shadow fell on me even there.” Escaping or confronting this panoptic gaze is a theme to which African-American art returns again and again, he argues. He continues this line of reading with prominent 20th-century poets like Langston Hughes, Amiri Baraka, and Nikki Giovanni, and finally up through modern rap lyrics.
In rap—and particularly the popular subgenre gangsta rap, which first developed during the late 1980s and early ’90s—recurrent themes of evasion and a desire for invisibility from law enforcement pervade both lyrics and sonic landscapes. Police helicopters sometimes whirl in the audio background just as they do over black urban neighborhoods like South Central Los Angeles. Lyrics are sometimes filtered to sound as if they’re picked up from a wiretap or pay phone. In one song, rapper T-Mo explicitly evokes incarceration as a metaphor for life in his neighborhood, saying “I want outta this hole. I’m in a cell under attack. / Lock up, folks—they in the ’hood / Got an eye on every move I make.” The lyrics may often be about violence and resistance, but often lurking more convincingly just under the surface is anxiety about surveillance and the isolation and mistrust such anxiety breeds.
Tellingly, these concerns are also evident in the broader conventions of the genre. Pressed to name five famous rappers, the average fan is unlikely to give you the names Tracy Marrow, Dana Owens, Carlton Ridenhour, Amethyst Kelly, or Andre Young, for example. He or she would identify these artists by their rap personae (Ice T, Queen Latifah, Chuck D, Iggy Azalea, and Dr. Dre, respectively). With their use of stage names—which the performers often carry off stage into their interviews and other public appearances—rappers both hide their real selves and “go the extra mile to signal that they are inventing a narrator,” Nielson told PBS Newshour in 2014.
But is rap, in addition to being commercially successful, also a poetic form—particularly gangsta rap, with its well-documented violence and misogyny? Art is often deeply disruptive; think of the rambling beauty of Walt Whitman’s verses or the brutal morality of Flannery O’Connor’s prose. Their initial shock gave way to recognition of their deep artistry. Academics working in popular culture often face a greater pressure to justify themselves than scholars of, say, Chaucer or Shakespeare.
“Rap music is an art form,” Nielson said. “You shouldn’t hold bad examples against it any more than we hold formulaic paperback romance novels against literature. Part of my scholarly agenda is that I want to explain it as a poetic form and help people understand that’s what it is.”
He acknowledges that rap is particularly vulnerable to misunderstanding and mischaracterization.
“Exaggeration and hyperbole are hallmarks of the genre,” he wrote in a 2012 piece for The Root; rap’s over-the-top lyrics and emphasis on violence play into “enduring stereotypes about the inherent criminality of young black men.”
But he was still surprised when he came across the work of a scholar in England who noticed that British prosecutors were introducing rap lyrics as incriminating evidence against defendants. He started taking a look in the U.S. and quickly found dozens and eventually hundreds of cases.
There was the case of a Southern Illinois University student and aspiring rapper who abandoned his car after he ran out of gas in 2007. Campus authorities who found his vehicle retrieved a piece of paper lodged between the seats filled with what the student later claimed were gangsta rap lyrics in progress. Six unrhymed lines at the end referred to a mass shooting. Police, prosecutors, and eventually a jury interpreted them as the communication of a terrorist threat, and he received a five-year sentence.
In a 2008 New Jersey case, prosecutors secured an attempted murder conviction and 30-year sentence against a defendant in part by reading 13 pages of the defendant’s rap lyrics. The lyrics were graphically violent and written months and years before the crime occurred. An appellate court later overturned the verdict, ruling that they should never have been admitted as evidence because they were so prejudicial.
“Just as in gangster films, horror novels, or even in pro wrestling, exaggerated depictions of violence are hallmarks of gangsta rap,” Nielson writes in one study. But prosecutors are not introducing lines from film scripts, pages from horror novels, or interviews with Hulk Hogan to secure convictions. Rap artists, he argues, are being singled out.
One key for understanding why lies in lines like these: “Well, early one evenin’ I was rollin’ around / I was feelin’ kind of mean, I shot a deputy down / Strolled along home, and I went to bed / Well, I laid my pistol up under my head.” In a 1996 study, researchers presented these lyrics to two different sets of people. They told one group that the words came from a rap song and the other group that they came from a country song. People who thought they were rap lyrics rated them as much more offensive and threatening than those who thought they were part of a country song. (The lyrics actually come from “Bad Man’s Blunder,” a folk song recorded in 1960 by the threatening-to-no-one Kingston Trio.)
Almost two decades later, in 2015, researchers replicated the experiment —same lyrics, same descriptions. The result? “Nearly two decades later, and not a damn thing has changed,” UC Irvine criminology professor Charis Kubrin, one of the researchers, told Orange Coast Magazine. “The people who thought the lyrics were from a rap song saw them as more dangerous, offensive, threatening, in need of regulation, and literal.”
Nielson started publishing what he was learning and thinking about this trend, including the first academic study of what he’d come to call “rap on trial,” co-authored with Kubrin. He also had success placing articles and op-eds in publications like The Atlantic, The New York Times, and USA Today. Unlike Chaucer or Shakespeare, rap is a media-friendly subject, and his pieces were popular—often getting thousands of shares on Facebook, Twitter, and the like.
His phone rang and his email buzzed as his work got wider exposure. He partnered with well-known rappers whose fame brought broader attention to the issue, people like Michael Render, aka Killer Mike (whose stage name has far less menacing origins than it might seem. “I rapped against a kid, as a kid, really well” during a rap battle, he told host Stephen Colbert on CBS’s The Late Show. “A guy stood on a desk and said, ‘That kid’s a killer.’” In other words, Killer Mike kills on the mic.). Nielson and Kubrin wrote an amicus brief for the Supreme Court’s hearing of Elonis v. U.S. (the court ruled in a way sympathetic to their arguments) and collaborated with others, including Render, to write a second amicus brief in a case the court ultimately declined to hear. Seven artists signed onto the latter, including two of the biggest names in rap, T.I. and Big Boi.
In the midst of all of this work, it was only a matter of time before defense attorneys started calling, too. Nielson became the go-to expert witness for explaining to jurors why lyrics that seemed abhorrent and confessional, and were written by young men accused of violent crimes, should not be weighed as courtroom evidence. He has consulted on or testified during dozens of cases. “I’m there defending the rights of people to a fair trial,” he said. “I’m never there asserting anyone’s guilt or innocence.”
That’s how he ended up in a Georgia courtroom explaining to a Fulton County jury the difference between Gary Bradford and Eldorado Red.
On the stand, he walked jurors through a basic concept every high school student learns in English class: the distinction between author and narrator, in this case between Gary Bradford and Eldorado Red. He explained rap’s emphasis on exaggeration and posturing, its roots in hip-hop culture and as a form of resistance to violence, and its genre conventions and use of complex wordplay.
“I’m there to provide academic context,” he said. “I can say ‘Listen, that phrase that sounded crazy, it’s actually been used 10,000 times by all of these platinum-selling artists. What sounded shocking is not. What [an investigator] says is a confession isn’t.’ … It’s like a crash course in what hip-hop and rap are,” he said.
In cross-examination, Bradford’s prosecutor pressed Nielson on his claims, pointing to lines in the songs “100 Shooters” and “I Supply Your Town.” In his questions, the prosecutor often referred to the defendant as Eldorado Red, but Nielson insisted on distinguishing between creator and creation in his answers. When the prosecutor asked if Nielson “has ever interviewed Eldorado Red,” for example, Nielson’s answer was, “No. Or Gary Bradford.”
One line of questioning led to an exchange over whether “100 Shooters” resists or advocates violence. Nielson put the song and stage name Eldorado Red in a wider context, explaining they are part of a body of work that Bradford has created in order to succeed as a rapper, a profession he has said in interviews he is pursuing to escape gang life rather than be part of it. But does the content of “100 Shooters” advocate violence, the prosecutor insisted. “It depicts it,” Nielson replied.
From this point, the testimony evolved into a discussion about whether Nielson could distinguish fiction from reality. He testified that as a literary scholar, he understands the conventions of fiction and its distinctions from reality well.
But what about the obvious correlations between Bradford’s lyrics about drug dealing and allegations of actual drug dealing, the prosecutor wanted to know. There may be correlations between the fictional creation and the creator’s real life, Nielson told him, but that happens all of the time in literary creations. He cited Bret Easton Ellis, author of American Psycho, a well-regarded but shocking first-person novel about a serial killer. Easton draws from many details of his life in the novel, but no one accuses him of being a serial killer, Nielson explained.
In response, the prosecutor wanted to know whether Nielson is “in the mind of Eldorado Red when he’s rapping.”
“You’re making a mistake right there,” Nielson told him, “because Eldorado Red is fictional.”
Nielson laid out his fullest argument in response to a question about whether lyrics describing drug dealing are fictional or real: “That piece of information I have to weigh against what is a significant body of work that depicts him in all different kinds of scenarios. In some, he’s got a Learjet and a Ferrari. In others, he doesn’t even have a, excuse my language, a pot to piss in—that’s a quote—and everything in between. Sometimes he’s a soldier, and sometimes he’s a lieutenant. Sometimes he’s El Jefe. I am looking at his entire body of work and realizing, notwithstanding what you just said, that he is exploring identities in a number of ways through his music.”
The trial of Bradford and two co-defendants lasted five weeks and involved a host of other issues. In the end, the jury convicted Bradford on two of seven charges—conspiracy and participation in criminal street gang activity—but not for murder. He was sentenced to 25 years and is now in a state prison in rural Butts County, Ga. Press reports indicate he is planning an appeal.
Had Nielson’s testimony made a difference in how jurors weighed the evidence?
“Erik helped change the course” of the trial, said Musa Ghanayem, Bradford’s attorney. “They had been painting [Bradford] as this ruthless drug dealer who was so brazen and so violent that he’s willing to go on stage and throw the red meat to his audience. ....Dr. Nielson was there to help me explain the difference between a media persona and a real person.”
Nielson’s testimony was, Ghanayem said, “a very sharp knife to cut through the bullshit of the state’s case,” which in his view relied on conflating Bradford with Eldorado Red. The testimony helped “get down to the nitty gritty and help the jury focus on what needs to be focused on” as it deliberated the charges against Bradford, he said.
Nielson said that he is “often uncomfortable” that his testimony as an expert witness in some ways plays into the stereotypes that he is there to refute. He’s conscious that, as he put it, “being a white man gives you a certain authority in the eyes of certain jurors….I’m aware of that, but in the end I’m not going to not do this and let somebody go to jail.”
The arguments for his role parallel those for the U.S. system of public defenders generally: Defendants are presumed innocent and deserve fair trials as a cornerstone of our legal system. The First Amendment protects everyone’s artistic expression, those we like and those we don’t, from criminalization except in very narrow circumstances, he said.
“These are kids, usually, or young men,” Nielson said, noting that he is a father himself. “They need somebody in there because I know what prosecutors are going to say, and I know what gang experts are going to say, and it’s likely to be inaccurate at best, knowingly false at worst.”
But he is defending a literary principle as well, the notion that rap music shouldn’t be introduced as evidence in a courtroom but instead given attention as a culturally significant form of poetic expression. The number of people who buy the novels of Toni Morrison, a Nobel Prize-winning African-American author, don’t compare with what rapper Dwayne Michael Carter Jr. (aka Lil Wayne) sells in a year, Nielson noted. Rap may not be to your tastes or liking, but it deserves study, respect, and acceptance as an American art form.
“Whether we like it or not, the messages coming from rap music are reverberating and resonating through a much broader swath of the global population than any of those traditional pieces of literature,” he said. “Don’t you think somebody should be looking at it with a critical eye? I think most people would come around and say, ‘I still hate it, but yeah.’”
“Matthew Dewald” is the byline and legal name of a person called “Matt” by his friends and colleagues and “Dad” by his two sons. Back in college, he purchased LPs and cassettes by artists ranging from David Bowie, My Bloody Valentine, and the Dead Kennedys to Public Enemy, De La Soul, and the Beastie Boys. Today, he is editor of University of Richmond Magazine, from which this article was reprinted (Spring/Summer 2016).