Sent to us by the author, Brett Redmayne.
Part 1 can be found here.
Part Two: Beyond A Crime of Music.
While jailed San Diego Rap musician, Brandon, “Tiny Doo,” Duncan makes his political statement all the way to trial this Friday, Jan 23, 2015, he jeopardizes his freedom to defend his innocence and his art. He has been in a San Diego jail for almost six months. While it would seem a given that he will be found innocent, the recent history of new US legislation, and the results of jury trials applied to civil rights issues peculiar to law enforcement and African-Americans, make the upcoming trial more of a dice-roll than should be. The result will go far beyond personal freedom for Tiny Doo Duncan.
Draconian laws that circumvent, redefine or directly attack the foundation of once vaunted American constitutional protections, like the Bill of Rights and the First Amendment are, in these troubled times, implemented with increasing regularity at the state and federal levels of law. Lowlights include, the correctly reviled 2012 NDAA (National Defense Appropriations Act) “earmarks” (Sects. 1023 and 1026) which continued the civil rights damage of the Patriot Act that was first to gut the aforementioned protections, including such world-wide legal fundamentals as Habeas Corpus. These, and other recent subversive laws, set the precedent that justifies prosecutors, such as Dana Greisen, pursuing unconstitutional, and therefore illegal, criminal theories against innocent citizens. Sect.182.5 is merely a tool.
Recently, Michigan also effected its own set of new laws under the guise of “Gang Control.” New Criminal Code sections,( §) 750.411u and( §) 750.411v, would seem to have all possible criminal gang related contingencies coved in Michigan, primarily because these two statutes are also vague in language and, therefore, very broad and open to similar prosecutorial abuse. Like Michigan, California statute provides a broad definition of what a gang member is, which reads,
“A criminal gang is defined as any organization, association or group of three or more persons, whether formal or informal, which (1) has continuity of purpose, (2) seeks a group identity, and (3) has members who individually or collectively engage in or have engaged in a pattern of criminal activity.”
One root question, as it will be for the trial jury, is: “who is a gang member?” If Tiny Doo is guilty of fabricated “intangible” benefits from long-ago gang affiliations that somehow add to his status, certainly this argument can be pursued in court against any socially conscious musician or artist. Attorney for Brandon Duncan, Brian E. Watkins, notes the obvious successes and comparisons, both financial and reputational that have come to self-professed Street Rap musicians such as, Tupac Shakur, one of the most successful Rap artists, and Dr. Dre, who this week was recognized as making a staggering $620 million this past year. “Tupac was an artist. He went to the school of performing arts. He was from the East coast, but he claimed West coast,” Brian Watkins cites as examples.”Dr. Dre, the one who started ‘gangster rap’ never gang banged.” Citing musical comparisons to his client he adds, “He [Tiny Doo] was playing to his audience. He’s a story teller. That’s his art.”
How Criminal the Brush of Justice?
But what constitutes criminal behavior that necessitates a conspiracy? How further vaguely defined might this moniker also become when applied so arbitrarily in the future? Again, these threats transcends Rap music. By the definition applied to the example of Tiny Doo, a gang is not necessarily, yet, a criminal enterprise. Here lies one of the threats within Sect. 182.5. Cannot a “gang” be an artist’s club, book club, association of activists, brotherhood of a political cause, or political action committee? Criminality of late has often proven to be subjective, sudden, and always political. A gang, by broad definition, does not necessarily require fifteen African American males who prefer the color red.
But, more importantly, if a criminal connection to conspiracy can be alleged against a rap musician merely for increased respect and CD sales, due only to the unknown actions of people he used to know, why not any musician or artist who runs a-fowl of a prosecutor by bringing attention to America’s new unconstitutional, authoritarian change of direction?
One must keep in mind that much of Americas old social and legal fabric has been made illegal very quickly. The Patriot Act was introduced to the US Congress and then passed into law in just eight days, so what was once OK by law, can overnight become criminal. Many of these new laws have been deliberately designed to restrict or redefine First Amendment rights to non-violent protest, assembly and expression. It certainly follows that music, music of the streets, falls under the same threat.
What of the multi-colored Occupy movement, or the recent coalition, “Black Lives Matter”? As applied to the intended legal precedent of Sect. 182.5, should their activities suddenly become collectively illegal, or if some of their members commit crimes without the other member’s knowledge, all are immediately vulnerable to a criminal “gang” conspiracy charge.
What of writers and journalists? To get the best story the good writer becomes involved with his subject and his sources, some of whom may be criminals according to this government, but not to another. If a journalist or author helps sell his work partly by virtue of his innocent affiliations with criminals, criminality being increasingly a subjective term, is he, too, guilty of both the tangible and intangible benefits of a criminal conspiracy?
What of religion? As insane factions of other established religions continue to demonize their peaceful Muslim brothers, while affecting control over the US congress, might not the Muslim religion, its mosques, its coffers, and worshipers fall victim to future political craftiness?
Such is the far reaching scope of intent that would use Sect.182.5 to go after anyone, any group or any gang who participates in America’s growing demand for social change for the betterment of people first, and dares to say so publicly using their art as vehicles of expression.
“I see civil rights eroding,” comments Watkins. His client is the case study that proves forever that being innocent has little to do with not being incarcerated. The case of Tiny Doo illustrates a pervasive, existing pattern of internal criminal behavior by the US legal system.
By the time Tiny Doo gets his day in court he will have already served a six month sentence in jail. Here, his plight is not unusual at all. As is already endemic in the American criminal justice system, at the mere whim of any unscrupulous prosecutor, the founding Constitutional principle of, “innocent until proven guilty,” is effectively null-and-void. The broad brush of abusive justice at the hands of prosecutors already punishes, with impunity, innocent Americans, like Tiny Doo, in a consistent and repeated pattern of violations. The goal: jail time despite innocence.
First, a prosecutor files frivolous, but very serious charges against an innocent defendant and demands an impossibly high bail. Strategically, the prosecutor knows that the unfortunate defendant does not have the financial means to achieve two vital responses: skilled legal representation and the demanded bail. So, the defendant is incarcerated until at least the Preliminary Hearing that once, long ago, provided a check on a prosecutor’s abuse of his “independent judgment.” As with Tiny Doo, too often this first judge punts the case in favor of the prosecutor’s unproven accusations being proved at trial, instead of properly considering issues of fact or unconstitutionality. This of course favors the prosecution, since it continues to punish the defendant who remains in stir.
This initial stage of intimidation is usually used to elicit a plea deal that will give the increasingly desperate prisoner a “Hobson’s choice” of accepting an offered sentence for a fictitious crime, or the reality of more jail time and a jury’s pending decision that could go either way. The theory of a trial “by a jury of one’s peers” long ago became as subjective as other formerly traditional and intractable forms of justice.
This method of prosecutorial abuse is not peculiar to race. Innocent citizens, activists and journalists of all colors across America have been tossed “inside” to next meet the reality of incredible bails and unfounded criminal charges. Then comes; the choice. The one to which Tiny Doo Duncan said, “No!”
If the jury gets it right the defendant walks free, but at the price of a previously long punishment devoid of freedom. As Watkins points out, just getting to trial can amount to a long term sentence, “sometimes one to two years to get through the system.”
If the jury is asleep, poorly chosen, or fails to grasp the legal nuances necessary for acquittal, the defendant is off to the Appellate Court. This is a long path indeed, several more years at least. The underhanded prosecutor knows this, and by additionally violating constitutional issues, such as vague laws like Sect.182.5, he can deliberately keep an innocent person in jail from their arrest all the way to an Appellate Court decision.
A very long time when you are innocent.
Like cops, prosecutors have Presumed Immunity from prosecution, via statutes that will not allow them to be tried for their prosecutorial decisions except under the most egregiously obvious circumstances, which is extraordinarily rare and just as hard to prove. Prosecutors know this, so like many cops, prosecutors increasingly abuse their authority and impose their own advanced prison sentence when a lack of evidence should have led to no charges being filed. To Tiny Doo, the $500,000 bail, which Watkins terms, “very disproportional,” is of course unobtainable, so despite the flimsiest of superficial evidence he remains serving a baseless punishment in jail. Of course, the prosecutor knew this would be his desired result. Hence, Brandon ” Tiny Doo” Duncan has a lot to lose sleep over.
“Absolutely, I think this is grandstanding on the part of the prosecutor,” acknowledged Watkins. “The prosecutor has abused his discretion in prosecuting Mr. Duncan. Unfortunately, that does happen.”
Superior Court Judge, David M. Gill, who first presided over the Preliminary Hearing noted several unconstitutional inconsistencies with the prosecution’s unique application of Sect. 182.5, yet he bound Tiny Doo over for trail and cut his bail only in half. He will return to the bench when the trial begins on Jan. 23. Watkins remains optimistic.
“He’s not going to be bullied,” asserts Watkins. However, when the freedom of Brandon Duncan goes under the gavel his freedom will remain substantially and unnecessarily at risk.
By the start of trial he will have served a one-half-year sentence, but the prosecutor wants at least twenty-four-and-a-half more. Here a malicious abuse of power harasses an artist, but more importantly sends a message, a warning, an alarm to all artists who take their passion from, or to, the streets of the people who, more than ever, need to hear it.