Sammy Hagar’s “I Can’t Drive 55” sold over a million copies. Does that mean that over a million people own a copy of Hagar’s blanket confession to the crime of speeding? Is Ice T’s song “Cop Killer” an exercise in his 1st Amendment rights to free speech, or a call to empanel a grand jury and charge him with murder?
These are question Clyde Smith would have liked to have had answered before he was convicted last Thursday of possession with intent to distribute prescription medications — a scenario Smith had portrayed in his rap video for the song “B.M.F. Freestyle.”
Smith was charged in Terrebonne Parish after he was pulled over for allegedly speeding while returning from Texas, where he had obtained numerous prescriptions medications. A consensual search of his vehicle led Louisiana State Troopers to the discovery of the prescription medications. The occupants of the car were arrested, and it was discovered upon questioning that Smith had bought the pills in Texas, and planned to sell them in Louisiana.
Among the evidence presented during the three-day trial was a video Smith made with his rap group, The Rico Group, telling a story of someone going to Texas to obtain prescription medications intended for sale on the street in Louisiana. Smith testified that he was playing a role — that his subject matter was fiction. “It’s nothing but entertainment,” Smith testified.
But Prosecutors apparently believed the video was anything but fiction, claiming that it essentially amounted to a “confession” to the crimes charged. But a rap song telling the general story of criminal conduct should never be considered a confession to a specific crime — even if the conduct described is remarkably similar to the crime charged. Sammy Hagar bragged about speeding in a song, but if he was charged with speeding on some future specific date, would the song prove he was speeding on that date? If Ice-T was accused of killing a police officer, would the fact that he talked about killing cops in a song mean he did it? I say no — and Louisiana law supports the proposition.
Even assuming Smith, Hagar and Ice-T can be said to be “confessing” to crimes in song, they most certainly cannot be said to be confessing to any specific crime on any specific day. Their statements, at most could be considered to be recounting what are legally termed “Other Crimes” — that is, a crime with which the defendant is not specifically charged. In Louisiana, evidence of other crimes is generally not admissible in a criminal trial, under Louisiana Code of Evidence 404(b). The theory of their inadmissibility is that they are generally more prejudicial against a defendant that they are probative of his or her guilt.
In this case, it seems that is precisely what the prosecution was counting on. Smith’s attorney, Carolyn McNabb, said in her closing arguments that rap was on trial and the videos would unfairly sway the 12-member jury.
In spite of it all however, and regardless of the law in support of or against the use of the video, it seems most important to point out that if you are going to make a living running prescription drugs from Houston, you should strongly consider not writing a rap song about how you make a living running prescription drugs from Houston.
After the trial, McNabb said Smith made the videos last summer, months before his arrest and says the content is fiction. “How stupid would that be to rap about what he was doing?”
Answer — Real stupid.