25 Years Worth of Creative License

If there was a list of tough gang-style rapper names to pick from, what would the chances be that the winning name would be “Tiny Doo”?  I mean, it just isn’t particularly manly, and worse yet, provides ample opportunity for potty jokes. Yet, that was the name under which Brandon Duncan rapped, and will be the name under which he could serve 25 years for being a gang killer.

Except he never killed anyone, unless you take this song too literally.  Via Gawker:

According to the San Diego County District Attorney’s office, Tiny Doo—real name Brandon Duncan—is a documented member of the gang that allegedly perpetrated the attempted murders. No one is alleging that Duncan fired a gun himself, bought the weapons, or was at the scene of the crime—that he had anything to do with the shooting at all, really.

Instead, they’re proposing the bullshit idea that Duncan’s rapping makes him implicitly guilty, trotting out a little-used 2000 law that “allows for the prosecution of gang members if they benefit from crimes committed by other gang members.”

What it means to be a “documented” gang member isn’t clear.  Is there a master list at the home office of all members? Do they hand out certificates of membership at the initiation ceremony, followed by lunch at Denny’s? But apparently, no one is questioning whether Tiny Doo was a member of a gang, no matter how loose or tight the affiliation.  At the same time, no is questioning that he had nothing to do with any shootings.

So why would he be sitting in a cell? The theory of prosecution is rather hard to wrap one’s head around, but San Diego’s 10News explains it thus:

Though Duncan hasn’t been tied to the shootings, prosecutors argued that he benefited from the shootings because his gang gained in status, allowing him to sell more albums.

“We’re not just talking about a CD of anything, of love songs. We’re talking about a CD (cover) … there is a revolver with bullets,” said Deputy District Attorney Anthony Campagna.

Stop laughing. This might be far funnier if Tiny Doo hadn’t spent more than 8 months in jail awaiting trial.  From CNN:

The statute in question is California Penal Code 182.5. The code makes it a felony for anyone to participate in a criminal street gang, have knowledge that a street gang has engaged in criminal activity, or benefit from that activity.

It’s that last part — benefiting from criminal activity — that prosecutors are going after the rapper for.

How these dots are connected, that Tiny Doo’s gang gained status from a bunch of murders, thus allowing him to sell more albums, remains a mystery.  Regardless of whether prosecutorial allegations, based apparently on social media posts, that Tiny Doo is still a gang member, so what?  So gang members adore his album so much that they buy it? That friends of gang members think the gang is so cool that they buy Tiny Doo’s album?  That people who have nothing to do with the gang somehow become enamored with his album because of the street cred he attains by being a gang member buy his album?

While short of calling Tiny Doo’s album buyers as witnesses to explain why they purchased his album, it’s hard to imagine how the prosecution would prove that necessary dot in its theory, it still doesn’t provide the connection.

Prosecutor: Why did you buy Tiny Doo’s album?
Witness: Uh. I liked the music?
Prosecutor: But didn’t you buy it because his gang killed people?
Witness: Well, sure. His songs have street cred.

Now what?  The statutory language is vague, “or benefits from any felonious criminal conduct by members of that gang,” though its application to a direct benefit may make some sense.  But music?

If the gravamen of the charge was that Tiny Doo’s music glorifies gang conduct, so what?  The First Amendment clearly allows such expression, and it cannot be criminalized because the government hates the underlying conduct.  So it appears that the state is trying to make an end run around the First Amendment by criminalizing Tiny Doo’s selling albums, and thus benefitting, because of his connection to the gang and the gang’s connection to murders, and, I guess, some sort of causal connection between the crimes and the album sales.

This would seem to be the perfect prosecution to be ripped to shreds by a judge at the preliminary hearing.  The attenuation between Tiny Doo’s music and the killings seems insurmountable, and yet he was held in jail and the case was put over to trial.  In other words, the judge bought the state’s argument that he benefitted from the killings.

So was Tiny Doo prohibited from making albums because of the combination of his gang membership and the murders allegedly  committed by his gang?  Was he not allowed to write and perform rap songs that glamorized gang life or crime?  Or was he simply not allowed to keep any proceeds from album sales or enjoy any stature that comes from being a successful rapper?

Any way you twist this prosecution, the First Amendment implications are overwhelming and the criminality so distant and theoretical as to be almost impossible to prove.  If prosecution by chaos theory is permissible, then why not prosecute the album buyers as well? Or even mere listeners, since they too benefit.

Yet, Tiny Doo remains in jail, facing a 25 year sentence, for rapping too real.

6 thoughts on “25 Years Worth of Creative License

  1. John Barleycorn

    “Stop laughing”?

    California passed Proposition 21 (The Gang Violence and Juvenile Crime Prevention Act) with 62% of the vote a mere 15 years ago. Brandon Duncan was 18 at the time.

    Prop 21 remains a classic “there out to be a law…” read.

    Time certainly does fly…

    P.S. Brandon was released on Friday after his bail was reduced.

    Irony P.S. Tiny Doo was incarcerated at the maximum security George F. Bailey Detention Facility before posting bail. Named after George who was a long serving County Supervisor and still best known for his buzz cut and his jail. Born in 1919, I think George is still alive today.

    Back in 2009 when George was 90 he gave an interview for
    U-T San Diego in which he said
    “It always made me mad when you had to put bars on your windows,” Bailey said. “It costs more than a half-cent sales tax for jails.” .

    It sure does George….I hope George is planning on leaving a good chunk of his estate to the state to build more jails because they will need the extra beds when it starts locking up all those
    “conspirators” in the future if Brandon’s prosecution is successful.


    1. Ruth Parlin

      And in 2013 the California legislature enacted, and the Governor signed, SB 458, creating a “shared gang database” accessible by any local law enforcement agency. Mindful of the ban on URLs, I won’t post a link to the database, but you can find information about it by entering “calgang” in your search engine of choice.

      So yeah, it’s possible to be a documented gang member in California. It’s also possible to be a documented gang member without actually being, you know, an actual gang member. Not that any law enforcement officer would add a non-banger to the database, of course.

  2. Marc R

    The threshold issue is determining what’s a gang. In my state, two or more activities such as your family tells police you’re in a gang, you make gang hand signals, you were gang affiliated clothing, etc.

    Thinking of the last few NACDLA meetings, and their local state and county sets, I think I’m a gang member. I wear dark suits and sunglasses, I make a counterclockwise rotating motion to wave my client to the podium when his name’s called on the docket, I hang out with 2 or more CDLs routinely and we make no attempt to hide our affiliation. And obviously I profit financially being a member of such a group…Scott I may need to retain you assuming they don’t pick you up as a codefendant in this complex MDL criminal case.

      1. Marc R

        “Unnamed co-conspirator” who wasn’t promised nothing in his proffer yet miraculously the State agrees to reduce $250K bond to ROR.

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