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Within the forced anonymity of cold, hard concrete walls and non-stop, overhead fluorescent lights, rap musician Brandon “Tiny Doo” Duncan remains in jail. It’s been almost six months. Duncan has no criminal record and knows that he was not involved in any crime.
The San Diego City district attorney agrees.
However, a new fabricated crime, uniquely reasoned, intends to incarcerate Duncan for at least twenty-five years. Or the rest of his life. For this crime, he is ostensibly guilty: music.
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“Sorry to keep you waiting. That was good news,” smiles attorney Brian E. Watkins, as he leads the way from the waiting room into his private downtown San Diego office. Closing the door, he continues, “That was the ACLU (American Civil Liberties Union). They’re going to be filing an Amicus Brief in support of our case.” The ACLU, thankfully, combined with the efforts of attorneys like Watkins, has been the historical bastion of Constitutional reason, fighting civil liberties violations effectively and aggressively for decades. They’re a very big hitter, and Watkins knows it. The implicit and far-reaching issues of the case of Brandon Duncan are quickly bringing others to attention. Watkins considers this a “test case.” The ACLU apparently agrees.
“When I see this kind of injustice, I get fired up.” In an exclusive interview, Brian Watkins, defense attorney for “Tiny Doo” Duncan, spoke about the injustice of the case against his client and its far-reaching, ominous implications.”This case is going to set a huge precedent,” he continued. “That’s why this case is so important.”
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In June of 2014, Brandon Duncan was just a guy growing up and trying to make a legal living for himself, his girlfriend Myra Arauz, her eleven year-old son, and their upcoming child, now finally away from the tough, gang-infested San Diego inner-city suburb of Lincoln Park. Born in Lincoln Park, Duncan, like many of his friends, had once been affiliated with the Lincoln Park Bloods; but he had left all of that more than five years ago. Working a construction job laying tile and taking classes related to his music at a local community college, after getting away with his family to a better area of San Diego, he was moving on to better times away from the streets.
Then, more than a dozen San Diego City Police burst into Duncan’s home, far from Lincoln Park, guns drawn, sunglasses glaring. He was arrested along with his equally innocent and pregnant girlfriend. Both had no idea what crime they were accused of. The cops were not saying.
Almost a year prior to his arrest, the Lincoln Park Bloods had allegedly been raising hell again. According to police, from May to July of 2013, members of the gang committed a series of crimes including attempted murder. For some unknown reason, the SDPD had no witnesses, weapons, or evidence to actually link all, or any, of the crimes to the Lincoln Park Bloods (nor, for that matter, the many other Hispanic, Latino, and Asian gangs who also prowl the nights of San Diego causing 70% of recorded gang related crime). However, when SDPD brought the hammer down on gang violence, just fifteen African-American men were grabbed in one coordinated raid. At the same moment that fourteen other alleged gang members were looking down gun barrels, “Tiny Doo” Duncan was face down, hands behind his back, handcuffs much too tight.
According to attorney Watkins, Duncan was first added to the full list of gang defendants who were being charged with multiple felonies including nine charges of premeditated attempted murder. Before their arrest, or presentation of facts to a judge at the arraignment, bail had already been set at $1 million for each. “Later the District Attorney admitted there was no connection [ of Duncan] to the crimes,” states Watkins. “In fact there is still no victim, no witnesses… just some shell casings. That’s it.” Subsequently, despite such a poor case, the judge would only reduce Duncan’s bail to $500,000, an apparently willful violation of the Eight Amendment due to the large bail being, seemingly, punitive. “Absolutely it is!” affirmed Watkins.
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So, Brandon “Tiny Doo” Duncan has been in the Richard J. Donovan Correctional Facility for over six months. He is linked to five charges of “Shooting at Inhabited Occupied Structure, Penal Code sections 664/187/189 and 246,” only because of purported gang affiliations and a promo CD from before the alleged crime. With no evidence, how, in America, is this possible? Answer: A combination of unconstitutional violations that already victimizes thousands of innocent Americans every year. A malicious prosecutor. A judge steeped in America’s new irrational direction of criminal justice. An oppressive bail.
And, Sect.182.5. If not for the prosecutor’s unique legal application of a recent law, California Penal Code Section 182.5, Brandon Duncan would be walking free. “Exactly!” affirmed Watkins.
Making Music a Crime.
Like many aspiring musicians in any genre, “making it” doesn’t pay much along the way. Having local roots, Duncan started rapping at fourteen and gained some notoriety in the San Diego Rap and Hip Hop scene. “Tiny Doo” Duncan kept his musical focus on the long term. In 2012, almost a year before the purported gang activity, he did what all aspiring musician do: he put together and recorded a promotional CD, “No Safety,” which has for a cover picture a close-up picture of a revolver with its six chambers partly filled and bullets scattered on the table. He made one hundred copies. Included on the disc were some of his older songs and a few new ones, self-promotion being the goal. As reported by Peter Holsin of the music publication “Noisey”: “We made 100 CDs,” said Tiny Doo’s friend Jack Dee. “He gave me twenty and kept [the rest]. You know how much he sold them for? He didn’t sell them for nothing. He gave all of his away.”
Promoting his music is Tiny Doo’s “twenty-five-to-life” problem. It turns out that he has been singled out for special, unique, and potentially precedent-setting legal treatment. All “artists” should pay close attention.
A California Criminal Code statute is deliberately, for the first time, being used beyond its originally intended scope and effect. For proponents of true civil rights, such as attorney Watkins, who fully understand the cold, hard reality of this devious legal manipulation by San Diego Gangs Division Special Prosecutor Dana Greisen, this case is the first salvo in a new and ominously serious attack, once again, on America’s deteriorating First Amendment. The target: social expression as art. The dagger: California Penal Code Section 182.5.
“He could have been out several months ago,” states Watkins regarding a plea deal offered by the prosecutor that would have released Tiny Doo in exchange for jail time served and a lengthy probation. “But he knows he’s innocent, so we will be going to trial.”
The trial is set to begin on Jan 23, 2015. At a recent court hearing, Tiny Doo, as the defendant, refused to allow the trial to be postponed, asserting, via the US constitution, his right to a speedy trial. This means that prosecutor Dana Greisen must get his pony show (i.e., his evidence, or lack thereof) into court on time.”We’re prepared and ready to go,” says Watkins.” We want our day in court so he can be released.”
Asked about Tiny Doo not taking the plea bargain and remaining, instead, in jail until trial, Watkins spoke for his client.”He is making a stand and being very honorable about it,” he says. “I think this is unethical, to use Brandon Duncan as a test case,” adds Watkins emphatically. “This is a person’s life.”
The “Tangible” Criminal Benefits of Music.
Sect 182.5 is basically a criminal charge of “conspiracy” to commit a crime peculiar to gang activity. According to the Criminal Complaint, the criminal benefits to Tiny Doo from his alleged, and unknown, conspiracy were a combination of “tangible,” and, for the first time, “intangible” benefits. In the strange legal mind of Chief Prosecutor Greisen, Sect 182.5 allows for the prosecution of an alleged gang member if they somehow benefited from crimes committed separately by other gang members, even without any prior knowledge of the pending crime. According to court papers, the alleged tangible benefits to Tiny Doo are increased CD sales which, of course, did not exist beyond the first one-hundred-copy run of promos. The alleged reason for these increased “sales”: his five-year-old affiliation with the Lincoln Park Bloods.
At trial, Deputy District Attorney Anthony Campagna will indeed have his hands full attempting to prove his boss’ theory of any “tangible” benefit to Tiny Doo that a jury will believe “beyond a reasonable doubt.” However, it is his continued enthusiasm for the new specious legal logic, one that supposedly proves a connection to “intangible” benefits, that speaks to a political agenda far beyond “justice.” Remarkably, as stated in the complaint, Mr. Campagna will ask a jury to believe that Tiny Doo should be incarcerated, for at least twenty-five years, due solely to the “intangible” benefit of… “increased respect.”
Well. This would seem to take the wind from the sails of absolutely every aspiring musician. On the way to the top, if one actually ever gets their “fifteen minutes of fame,” the only “tangible” reward, aside from a tip jar and selling a couple CD’s after a gig, is, absolutely, increased respect. Marching on in penniless anonymity does not compensate for the sacrifices an artist makes to pursue a passion that will not be denied. But a compliment, or any small recognition of one’s work, provides the sought after “increased respect,” the pure gold, that gives one the strength to continue to walk the long road that all artists know may never be realized.
Respect: intangible? Heck, most times that’s all you get.
“Music Should Never Be In Court.”
According to prosecutor Dana Greisen, as reported by The Guardian: “Rap music, it’s just another form of communication that gang members use in furtherance of their crimes.” Of course. Any art worth the artist’s effort always has something to say.
The poor legal wording of sect.182.5 has provided this prosecutor the overly broad brush of a new, vague definition of “criminal conspiracy.” Sect 182.5 was, it would seem, designed to be flawed, vague, and therefore should normally be unconstitutional. Predictably, it now serves an unscrupulous prosecutor who believes he has found a unique means to abuse, with impunity, black- American youth.
Prior to its passage by California voters in 2000, there were already multiple criminal statutes providing punishment for criminal conspiracy. In order to get tough on gang activity, however, a ballot initiative, Proposition 21, was put to the voters, offering a multitude of new actionable crimes for law enforcement to use. Upon review by California legal analysts, they rejected the part of Prop. 21 that was Sect. 182.5 for many reasons, including that the statute was too vague in its language and therefore unconstitutional.
When Prop. 21 passed, Sect. 182.5 became law.
Normally, in proving a charge of criminal conspiracy, a prosecutor must show a provable connection of an agreement to commit a crime between two or more persons; and one of those persons must then act out the crime(s) involved in the alleged conspiracy.
According to Watkins, with Sect. 182.5, the definition of “conspiracy” has suddenly changed. Previously, conspiracy “required a meeting of the minds to commit a specific crime,” he explains. ” We don’t [previously] punish people for actions they didn’t do, or have no knowledge of.”
Not, according to Special Prosecutor Dana Greisen, when he uses Sect. 182.5. Here, the broad brush of very badly crafted and divisively applied legislation ensnares, by accusation of association only, Brandon Duncan for expressing an opinion, i.e., music that runs afowl of a prosecutor’s agenda, one that he has arbitrarily denoted to suddenly be criminal behavior–rap music and a CD cover he doesn’t like.
Asked if Sect. 182.5 posed a chilling effect on American civil liberties, Defense Council Watkins was quick to respond: “This is a very, very novel [legal] theory. If Brandon Duncan is allowed to be prosecuted for his speech, for his artistic expression, what’s next?”
What of the art of music? Influential music has always been the harsh music of the streets and of the real people who live there. Rap and its many genres are not the only, nor the newest, musics from America’s mean streets. Music, particularly American music, has always championed the voice of a nation. Before Rap, there was Punk, then Grunge. Before that, Rock & Roll. Before Rock was the Blues that spawned Jazz. And before that, the foundation of all American music: slaves singing in the fields. All sang, across the breadth of all this history, in the hope of a better day.
Music will always be the unwelcome reflection just before the dawning of the consciousness of a nation.
– The End of Part One-
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