RAP ON TRIAL?
Judge denies request for use of video in murder trial,
Less than three weeks before Neeko Mitchell was shot to death outside a Rexdale community centre, a rap video appeared on YouTube. It featured the man accused of ordering his murder boasting his “goons shoot when I say so.”
It was one of 10 rap videos prosecutors wanted to use in their case against Jermaine Dunkley, an admitted Toronto gang leader and rapper who denies having anything to do with the Nov. 24, 2013, killing. But a judge denied the Crown’s request to show the videos at Dunkley’s first-degree murder trial, saying they were “extremely prejudicial” and presented him in a “threatening and unfavourable light.” As a result, the jury began deliberations Sunday without seeing them presented as evidence against him — although the judge allowed several short lyrical excerpts.
It’s the latest Canadian criminal case to put rap music on trial, a practice defence lawyers and criminologists malign as an unfair way to incriminate young, disadvantaged Black males drawn to a music and “gangster” lifestyle that is not necessarily a reflection of reality.
The sweeping exclusion appears unusual. A 2016 academic paper calling for a “rethinking” of the admissibility of rap found the genre’s lyrics were admitted in 16 of 36 Canadian criminal cases over the past decade, and excluded in four. The research, by University of Windsor law professor David Tanovich, noted court records did not indicate whether admissibility was contested.
The just-retired Toronto jury must decide whether to accept the Crown’s allegations that Dunkley instructed members of his crew — called Monstarz — to kill Mitchell in retaliation for his brother Ricky Dunkley’s murder four months earlier in a Brampton banquet hall. Prosecutors allege Mitchell was shot because he was seen associating with Rico Gayle, the suspect in Ricky Dunkley’s murder, who was affiliated with a rival gang.
Gayle has not been arrested. Police believe he has fled to Jamaica.
The jury was told Monstarz is both a criminal gang and rap production label co-founded by Dunkley, who performs as rapper J Noble. The name Monstarz, he testified, was inspired by the animated villains in the 1996 movie Space Jam, starring NBA legend Michael Jordan.
Dunkley, 33, and co-accused Sheldon Tingle, 37, have pleaded not guilty to first-degree murder. Earlier this year, a jury convicted Dunkley’s second cousin, Reshane Hayles-Wilson, of second-degree murder for firing the eight shots that killed Mitchell. Tingle, who was dating Mitchell’s sister at the time, allegedly lured the victim outside so Hayles-Wilson could pump him full of bullets. He is serving a life sentence.
Jurors sitting through the two-month trial at Toronto’s downtown courthouse watched surveillance camera footage from the North Kipling Community Centre that captured Hayles-Wilson, the defendants, and others, in discussions prior to the shooting — and Mitchell’s execution outside.
Defence lawyers Jeff Hershberg and Brian Ross told the jury the footage showed that Dunkley neither encouraged nor assisted Hayles-Wilson, who set upon his own “course of action” because he was miffed about being humiliated over a drug debt. Scott Reid, the defence lawyer representing Tingle, also argued the Crown failed to prove his client’s involvement.
The decision not to show the rap videos was made last April by Superior Court Justice Michael Code who ruled the “extremely prejudicial evidence” was inadmissible and expressed surprise the Crown thought otherwise.
“The visual images are threatening and intimidating and they depict unrelated crimes such as drug trafficking, kidnapping, and possession of proceeds of crime. The lyrics glorify violence and celebrate the use of guns and murder,” the judge wrote in a 44-page omnibus ruling that also covered the admissibility of wiretaps and social media postings.
“The entire effect is to powerfully convey a general disposition and lifestyle, assuming that the lyrics are sincere as the Crown submits. In addition to this powerful prejudicial effect, there were very few parts of the rap videos and lyrics that could possibly be relevant to the present trial, involving a specific alleged murder of Neek o Mitchell.”
But the Crown argued that jurors should hear and see Dunkley’s rap videos because they are “highly relevant” to motive and to demonstrate his power over gang members. The difference in this case from others, the prosecutors said, is that the one-time Hamilton high school basketball star is a real-life gangster who has boasted he raps about real things.
“Brain’s smart enough to know that it’s more than music,” Dunkley raps in one lyric — from a song titled “Delayed Flight” — cited by police and prosecutors as evidence that his music is rooted in reality, which Code excluded.
Code did, however, permit jurors to watch a 2012 interview with Dunkley, in which he repeatedly said his “rapping is real.” The jury also heard portions of Dunkley’s criminal record, which includes convictions for drug trafficking, bribery, break and enter and breaches of various court orders. They did not hear that Dunkley still faces another first-degree murder trial in Hamilton.
In their factum filed with the court ahead of last spring’s omnibus ruling, prosecutors Liz Nadeau and Marco Cuda wrote that Dunkley raps about avenging the death of his brother Ricky, having shooters who follow his orders, being the leader of the Monstarz and committing acts of violence against rival gang members.
“The Crown maintains that the music is more than music but a communication of the gang’s dominion,” which is why the videos and lyrics should be admitted, the factum argues.