Brandon Duncan, a rapper who performs by the name Tiny Doo is, like many other rappers, part of a gang. While the rapper’s album “No Safety” isn’t a best seller, it has attracted national attention because it has allowed prosecutors to charge Tiny Doo with crimes that could result in a lifetime prison sentence. That’s right, despite the fact that Brandon Duncan has never been convicted of a crime and is not a suspect in any violent crimes, he is facing life in prison for lyrics on his rap album. Vista criminal lawyer Peter Liss explains how prosecutors are getting away with this and what will likely happen to Brandon Duncan.
Duncan and 14 other members of his gang are on trial for gang-related shootings that took place last April in San Diego. While the rapper isn’t charged with actually participating in any of the shootings, prosecutors have adapted a voter approved measure dating from 2000 that prohibits gang members from benefiting from the actions of other gang members. Specifically, the law states, “any person who actively participates in any criminal street gang, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony.” And under California conspiracy laws, that means he is subject to the same penalties as those who actually took part in the shootings.
The evidence against Tiny Doo is minimal -basically coming down to his rap album’s lyrics and Facebook pictures showing the rapper with members of the gang who are believed to have acted in the shooting. Unfortunately, conspiracy laws allow for a looser standard of evidence, so while his Vista gang defense attorney probably could have murder charges dropped if these were the only pieces of evidence, they are still enough evidence to potentially allow this case to progress to trial.
The upside is that both criminal lawyers in Vista and constitutional law scholars believe these charges will not hold up against the First Amendment, particularly considering that Duncan’s album does not actively promote gang activities and it does not discuss the specific shootings he is being charged for conspiring in. The downside is that if the jury follows the existing law on the state’s books, he could still be sentence d and be forced to spend time in prison until his inevitable appeal is successful.
The case itself has serious consequences for the status of the First Amendment in modern America. As constitutional law professor Alex Kreit points out, “Where does that end if that’s the definition of criminal liability? Is Martin Scorsese going to be prosecuted if he meets with mafia members for a movie for his next film?” Until Duncan is freed and state prosecutors are banned from filing similar dubious charges, those in favor of free speech will be waiting with bated breath.
If you are charged with a crime that you believe violates your First Amendment rights, Vista criminal attorney Peter M. Liss can help. Please call (760) 643-4050 to schedule a free initial consultation.