| In SDNY Rap Song Showdown
Looms In Trial For Murder of Shaquille Malcolm
in The Bronx
By Matthew
Russell Lee, Patreon
Honduras
- The
Source - The
Root - etc
SDNY COURTHOUSE,
Dec 8 –
On the second day of 2014 in
The Bronx, New York Shaquille
Malcolm was repeatedly shot
and killed in a building in
the Allerton section.
In arraignments
that followed, Inner City
Press reported
that the death penalty was on
the table, including as to a
co-defendant who has since
pled guilty to a superseding
indictment, Gyancarlos
Espinal.
On December 4 the
two remaining co-defendants
Arius Hopkins and Theryn Jones
a/k/a Old Man Ty were on trial
before U.S. District Court for
the Southern District of New
York Judge Lewis A. Kaplan.
Testifying against them was
now cooperating co-defendant
Alexander Melendez. He
described using a .22 to shoot
and kill Shaquille Malcolm,
with orders and firepower
given by the two mean with six
lawyers sitting at the defense
table.
The
impending issue is the use of
a rap or hip-hop song as
evidence. Arius Hopkins'
lawyer Glenn A. Garber had
asked that prospective jurors
be asked if they were familiar
with "the genre of music
called gansta
rap."
On December 4,
Assistant US Attorney Danielle
R. Sassoon argued that
questions about the song - a
copy of which does not appear
to have been uploaded by the
US Attorney's Office unlike
with GUMMO and Billy in the #6ix9ine
trial also known as US
v. Jones - should be
limited.
Such songs
and lyrics are also being used
by the US Attorney's Office in
another SDNY case Inner City
Press has covered,
US v. Darrell Lawrence, et
al., 19-cr-761 (Oetken).
It is an emerging and
accelerating First (and Fifth)
Amendment issue, leading Inner
City Press to raise folk-type
song SDNY questions.
Now on
December 8 the government has
filed this: "December 8, 2019
Honorable Lewis A. Kaplan
United States District Judge
Southern District of New York
500 Pearl Street New York, New
York 10007 Re: United States
v. Theryn Jones and Arius
Hopkins, S4 17 Cr. 791 (LAK)
Dear Judge Kaplan: The
Government respectfully moves
to preclude the testimony of
Dr. David Brotherton, a
sociologist with a specialty
in street gangs, whom
defendant Arius Hopkins
proposes to call as an expert
on the “various theories of
hip hop and rap music,” and
“the sociology of resistance
and youth subcultures.”
(Hopkins Supplemental
Disclosure Letter dated
December 2, 2019 (the “Hopkins
Disclosure”) at 1). The
Hopkins Disclosure fails to
provide the Government with
the information to which it is
entitled under Rule 16.
Furthermore, based on the
vague description of the
proposed testimony, it appears
that the expert testimony is
either unreliable or not
helpful to the jury. For these
reasons, Dr. Brotherton’s
testimony should be precluded.
A. Hopkins Has Failed to
Comply with His Obligations
Under Rule 16. Rule 16
requires a defendant seeking
to introduce expert testimony
to provide the Government with
a summary of the testimony
that “describe[s] the
witness’s opinions, the bases
and reasons for those
opinions, and the witness’s
qualifications.” Fed. R. Crim.
P. 16(b)(1)(C). The Hopkins
Disclosure fails to provide
this required information,
thereby depriving the
Government of the “fair
opportunity to test the merit
of the expert’s testimony
through focused
cross-examination.” United
States v. Tuzman, 2017 WL
6527261, at *8 (S.D.N.Y. 2017)
(quoting United States v.
Ulbricht, 858 F.3d 71, 114 (2d
Cir. 2017)). The Hopkins
Disclosure solely consists of
Dr. Brotherton’s CV and list
of qualifications, followed by
a bullet-pointed list of 13
opinions, which are reproduced
below: 1. Gang culture is
prevalent in certain
low-income neighborhoods in
the Bronx including the
Parkside area. 2. Street gangs
often resemble and have
features of social clubs. 3.
It is inevitable that people
in neighborhoods with gang
presence will associate with
gang members but will not be
part of a gang. The Silvio J.
Mollo Building One Saint
Andrew’s Plaza New York,
New York 10007 U.S. Department
of Justice United States
Attorney Southern District of
New York Case
1:17-cr-00791-LAK Document 120
Filed 12/08/19 Page 1 of 5
Page 2 4. If people associate
with gang members or are part
of a gang it does not mean
that they participate in
violent acts. 5. Violence and
drugs are common topics
discussed in inner-city
environments with gang
cultures. 6. Residents in
communities with gang presence
glorify violence and drugs,
even residents who are not
associated with gangs. 7.
Violence and drugs are topics
frequently raised in
communities with gang
presence, including in social
media. But this does not mean
that people who speak of and
make references to drugs and
violence and claim to be
involved with drugs and
violence actually are involved
with drugs and violence. 8.
Rap music is an art, and a
form of expression. Violence
and drugs are addressed and
glorified in rap music. 9.
Based on the traditions,
patterns, roots and
antecedents of hip hop music,
including rap and gangsta rap,
song lyrics and expressions by
artists in these mediums are
designed to create or develop
their image and/or promote
their work. They may not be
taken as expressions of truth
by virtue of being stated or
sung by the artists. 10. Rap
lyrics are called a bricolage
and can be drawn from stands
or life either experienced,
observed, or heard about that
become tales of the hood. 11.
“New Jack City Freestyle,” https://www.youtube.com/watch?v=cSMrvJiTWs,
depicts gangsta rap."
Only one problem
- the song is no longer
available on YouTube, and the
US Attorney's office despite
Inner City Press' request as
on in the OneCoin case of US
v. Mark Scott has not made
available this or any other
exhibit. Why not?
Judge Kaplan reserved judgment
on what he will allow on
cross-examination. This case
is US v. Jones, et al.,17-cr-791
(Kaplan).
***
Your
support means a lot. As little as $5 a month
helps keep us going and grants you access to
exclusive bonus material on our Patreon
page. Click
here to become a patron.
Feedback:
Editorial [at] innercitypress.com
SDNY Press Room 480, front cubicle
500 Pearl Street, NY NY 10007 USA
Mail: Box 20047, Dag
Hammarskjold Station NY NY 10017
Reporter's mobile (and weekends):
718-716-3540
Other, earlier Inner City Press are
listed here,
and some are available in the ProQuest
service, and now on Lexis-Nexis.
Copyright 2006-2019 Inner City
Press, Inc. To request reprint or other
permission, e-contact Editorial [at]
innercitypress.com for
|
,
