The case had gone cold.
Four years after the 2007 murders of Christopher Horton, 16, and Brian Dean, 20, detectives in Newport News had little to go on.
No suspects. No sign of the gun used to shoot the men. No witnesses to the shooting outside a house where officers found Horton sprawled next to a trash can and Dean on the front porch.
But in 2011, the case was reassigned to a detective who later came across what he considered a compelling piece of evidence: a YouTube video of Antwain Steward, a local rapper with the stage name Twain Gotti, performing his song “Ride Out.”
“But nobody saw when I (expletive) smoked him,” Steward sang in the video. “Roped him, sharpened up the shank, then I poked him, 357 Smith & Wesson beam scoped him.”
Steward denies any role in the killings, but the authorities took the lyrics to be a boast that he was responsible and, based largely on the song, charged him in July with the crimes.
Today, his case is one of more than three dozen prosecutions in the past two years in which rap lyrics have played prominent roles. The proliferation of cases has alarmed many scholars and defense lawyers, who say that independent of a defendant’s guilt or innocence, the lyrics are being unfairly used to prejudice judges and juries who have little understanding that, for all its glorification of violence, gangsta rappers are often people who have assumed over-the-top and fictional personas.
“If you aspire to be a gangsta rapper, by definition your lyrics need to be violent,” said Charis E. Kubrin, an associate professor of criminology, law and society at the University of California, Irvine.
Prosecutors say the lyrics are an important tool for battling criminals who use an outspoken embrace of violence as a weapon of control. “Just because you put your confession to music doesn’t give you a free pass,” said Alan Jackson, a former senior prosecutor in the Los Angeles County District Attorney’s Office.
In some of the cases, the police say, the lyrics represent confessions. More often, the lyrics are used to paint an unsavory picture of a defendant to help establish motive and intent.
Increasingly, the act of writing the lyrics themselves is being prosecuted – not because they are viewed as proving guilt in a crime but because prosecutors say the words themselves amount to a criminal threat.
The debate is playing out in courtrooms across the country. In Topeka, Kan., a judge is expected to rule in coming months on a motion to exclude rap lyrics from a double-murder case.
The New Jersey Supreme Court will soon hear arguments on whether 13 pages of lyrics written by Vonte Skinner – including lines such as “four slugs drillin’ your cheek to blow your face off and leave your brain caved in the street” – should have been admitted at his attempted-murder trial.
In Virginia, Steward is to go on trial in May.
“What’s getting really unnerving,” said Erik Nielson, an assistant professor of liberal arts at the University of Richmond, “is the amount of time it appears both police and prosecutors are spending over rap lyrics and videos on social media rather than using that time to go and gather more convincing, more conventional forms of evidence.”
“This is kind of a backdoor way in,” he said.
In the profane world of hardcore rap, verisimilitude is prized. Growing out of the housing projects and ghettos on the West Coast in the 1980s, gangsta rap made the gritty reality of gangs, violence and drugs central features.
Law enforcement took note. In a 2006 article distributed to prosecutors, an FBI analyst recommended looking for rap lyrics when searching homes and jail cells because of their potential as leads.
Jackson, who investigated gangs as a prosecutor, said such lyrics could be useful in building a case because the search for status – attaining it, crowing about it, expanding it – is integral to gang life. “If you listened to the songs,” he said, “you would literally hear gang members confessing to crimes they had committed previously and were disseminating it within the neighborhood.”
In New York, detectives monitor rap videos on YouTube to study the pecking order on the streets and grudges between gangs that might have spurred crimes.
Most rappers charged in recent cases have been amateur performers who aspire to fame, even though gangsta rap is no longer as popular as it was, having been supplanted by more mainstream party music.
Critics such as Andrea L. Dennis, an associate professor of law at the University of Georgia, say law enforcement ignores the fact that rappers do not necessarily live the lives they sing about.
Rick Ross, for example, took his stage name from a West Coast drug kingpin of the 1980s, Freeway Rick Ross. When he broke through as a performer in 2006, his streetwise image and rhymes about the Miami gangster lifestyle seemed like references to a shady past. In reality, he had once been a corrections officer.
Those who oppose the use of the lyrics say prosecutors have singled out rap as a literal evocation of reality, when the lyrics in other musical genres have long been acknowledged as fictional.
One of the few criminal cases in which other kinds of artistic work played a role unfolded nearly three decades ago in Washington, where prosecutors introduced a piece of crime fiction in an assault case to show that the author had a violent streak. The conviction was overturned by an appeals court, which said it rejected “the proposition that an author’s character can be determined by the type of book he writes.”
A brief filed in the Skinner case by the New Jersey chapter of the American Civil Liberties Union turns to “Crime and Punishment” and “Folsom Prison Blues” to make a similar point. “That a rap artist wrote lyrics seemingly embracing the world of violence is no more reason to ascribe to him a motive and intent to commit violent acts than to saddle Dostoyevsky with Raskolnikov’s motives or to indict Johnny Cash for having ‘shot a man in Reno just to watch him die.’ ”
In Kansas, lawyers for Philip D. Cheatham Jr., a drug dealer and aspiring rapper who faces a retrial in the double murder there, have argued that the lyrics being used against him, from his song “Prove Me Guilty,” are irrelevant and evidence of a double standard.
Cheatham, who previously served time for manslaughter, is charged in the 2003 slayings of two women and the wounding of a third, who was shot 19 times and is scheduled to testify against him. His song, which Cheatham said is actually titled “Innocent,” speaks of women who “got killed.” But in an interview in prison last month, he said that he was merely noting the deaths as a narrator and that other parts of the song recycled lines from another work, a writing approach he often follows.
“Of course, it’s not a confession because if you look at the actual lyrics, I never say that I did anything,” he said.
But Jacqie Spradlin, the prosecutor in the case, argues that the circumstances surrounding the lyrics are quite different from any involving songs written by Cash. Cheatham’s lyrics, found in a notebook in the back seat of a car, involved a crime that actually happened to people Cheatham actually knew, she said.
“If there had actually been a man in Reno that died,” she said, “and Johnny Cash was standing there watching it, it’s not too far of a jump to say that, ‘Hey, Cash may have been the one involved.’ ”
In a relatively new twist, rap lyrics themselves are viewed as the wrongdoing in several cases.
Last month, two men in Pittsburgh, Rashee Beasley and Jamal Knox, were sentenced to prison after posting a rap video that threatened to kill two police officers who had arrested them on firearm violations. Although they argued that they never intended to hurt the officers, and that the video was protected speech, they were convicted of intimidation, terrorist threats and other charges.
“It is abundantly clear to me that the conduct of the defendants here is not protected by the First Amendment because it far exceeds what the First Amendment allows,” said Judge Jeffrey A. Manning of the Allegheny County Court of Common Pleas.
Some lawyers argue that rap music is protected artistic expression, just like novels and films. They say the courts should apply stringent standards before allowing such lyrics into evidence, in part because of the chilling effect on free speech.
“There should be heightened scrutiny,” said Ezra D. Rosenberg, a lawyer who filed the brief for the ACLU in the Skinner case. “Just because it rhymes and has a beat doesn’t necessarily make it art. But you have to be particularly careful.”
That view does not carry weight with Jackson, the former Los Angeles prosecutor.
“We’re not stepping on the First Amendment,” he said. “We’re not preventing you from writing.”
Before he was arrested last summer, Steward had been making a name for himself in Hampton Roads. Rapping as Twain Gotti, he had released six mixtapes, performed at clubs along the East Coast and landed with a New York management firm.
He was about to embark on a 22-city tour when the police charged him with the Horton and Dean murders from six years earlier, when he was 16.
Witnesses told the police that Steward had previously been bested in a street fight by Horton, a supposed rival gang member. Relatives of Horton also steered investigators to a YouTube video of Twain Gotti’s song “Ride Out.”
“For him to do something like that shows me he wasn’t remorseful at all,” Dean’s mother, Nicoletta Dean-Peebles, told The Daily Press.
Steward’s lawyer, James S. Ellenson, said the song appeared to be a significant part of the prosecution’s case because there were no witnesses to the shooting, and other evidence is problematic. (The prosecution declined to comment.) Two prosecution witnesses have placed Steward near the scene, and a third says he admitted the murders.
But one witness, who said he had seen Steward with a gun just minutes before shots rang out, was originally questioned as a suspect in the murders years ago. He did not mention Steward at the time, Ellenson said. A second witness, a neighbor who said she had seen Steward run past her house with a gun, did not make the identification until five years after the shootings. The third witness, who said Steward had confessed to him while recording the song, came forward years later, after he had been sentenced to 38 years in prison in an unrelated case.
Steward denies being a gang leader or fighting with one of the victims. And the lyrics don’t neatly correspond to the crime: No knife was involved, the song mentions only one murder, and shell casings found at the scene were of different calibers from the gun cited in the song.
In an interview in jail, not far from the housing project where he grew up, Steward said his songs should not be taken literally. “I speak for the people who come from a bad place,” he said. “It’s not about me. It’s about where I’m from.”
Nielson, the University of Richmond professor, said using YouTube videos as evidence was objectionable because they can unfairly prejudice a jury even more than lyrics. “Even if the defendant dresses up in a coat and tie for his trial to present a respectable image, the video – especially if considered autobiographical – could undo that in a hurry,” he said.
Prosecutors argue that such videos and lyrics can be a highly useful addition to traditional evidence. They say their critics have a romanticized view of rappers, a characterization that Nielson rejected.
“I don’t have a problem watching a guilty person found guilty,” he said. “But I think you can make an argument that you have not received a fair trial if rap lyrics were used against you.”