It’s a showdown that is breaking legal ground — a local man with no criminal record facing a lifetime behind bars for cutting a rap album.
Brandon Duncan, also known as Tiny Doo, will be heading for trial, a judge decided Monday.
Last week, Duncan and some of the 14 other gang members facing attempted murder charges in the case were in court for a preliminary hearing. They are charged in a gang conspiracy involving nine local shootings since April 2013, as a judge mulled a possible trial.
Prosecutors are calling upon a state law put in place by voters in 2000 that has not been used until now. It allows for the prosecution of gang members if they benefit from crimes committed by other gang members.
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.
The goal of the law — extra powers aimed at gang crime.
In San Diego, a third of all crimes are committed by gang members.
Duncan’s attorney calls the charges a reach.
“It’s shocking. He has no criminal record. Nothing in his lyrics say go out and commit a crime. Nothing in his lyrics reference these shootings, yet they are holding him liable for conspiracy. There are huge constitutional issues,” said Brian Watkins, Duncan’s attorney.
10News took the case to Thomas Jefferson School of Law professor Alex Kreit, and he said the law may run into constitutional problems, starting with freedom of speech.
“Where does that end if that’s the definition of criminal liability? Is Martin Scorsese going to be prosecuted if he meets with mafia members for a movie for his next film?” said Kreit. “The Constitution says it can’t be a crime to simply make gangster rap songs and hang out with people that are committing crimes. You have to have more involvement than that.”