In a recent decision, the U.S. Tax Court rejected a taxpayer’s attempt to use an expert witness to prove that the taxpayer’s computation of tax liability was proper. While an expert witness might play a role in tax litigation, the Tax Court ruled that an expert report, standing alone, cannot satisfy the taxpayer’s burden of proving that deductions were improperly disallowed by IRS auditors.

Facts of the Case

The IRS decided that certain taxpayers who owned shares of Total Health Concepts, LLC (“THC”) miscalculated their tax liability. THC is a Colorado company that sells medical marijuana. It elected to be treated as an S corporation, meaning profits and losses would be passed through to shareholders for tax reporting purposes.

THC reported business losses for tax years 2009 to 2011. The company calculated its income by subtracting cost of goods sold from receipts. It then claimed “below the line” deductions for wages, rent, depreciation, and other costs of doing business. The taxpayers then claimed THC’s pass-through losses on their individual income tax returns.

The IRS audited THC’s return and reclassified many of the claimed business expenses as “cost of goods sold.” It disallowed THC’s remaining “below the line” deductions. The adjustments increased THC’s taxable income and thus increased the taxable income of the taxpayers, who challenged the IRS determinations in Tax Court.

Expert Witness

When the IRS decides that a taxpayer has a greater tax liability than is reported on a tax return, it is the taxpayer’s burden to prove that the IRS is wrong. Taxpayers must usually meet that burden by producing records that substantiate the amounts and purpose of deductions that the IRS disallowed.

Instead of producing business records to substantiate THC’s deductions, the taxpayers submitted into evidence an expert report. The report was written by Jim Marty, a C.P.A. with expertise in cost accounting within the marijuana industry. The report discussed how THC should compute costs of goods sold and opined that its “below the line” deductions were proper.

The IRS moved to exclude the expert report. The IRS argued that the report consisted of legal opinions that usurped the role of the Tax Court judge. The IRS also argued that the taxpayers were not entitled to rely on an expert report as a substitute for business records that they failed to produce.

Tax Court Ruling

The Tax Court applied the federal Daubert standard to determine whether the report was admissible. It concluded that the report was “brief and summary” and that its content was unreliable. Some of its assertions of fact were unsupported by reference to any source of those facts. When the report did refer to a source, the source was not produced so that the accuracy of the assertions could be determined. In short, the report lacked “sufficient information or data” to support a conclusion that the opinions expressed were based on anything other than conjecture.

For example, the report made assumptions about the average wholesale purchase price of medical marijuana, but did not explain the basis for those assumptions. The report also assumed that the cost of goods sold equals 55{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} of gross sales, a figure that was apparently based on industry averages. The report also included “reconstructed” tax returns as exhibits that purported to show that THC had a higher cost of goods sold than the industry average in the relevant tax years. Supporting exhibits did not include any business records showing actual sales figures or any other supporting documentation.

The Tax Court noted that the expert report was not based on personal knowledge of the taxpayers’ business. The court held that a reconstructed tax return based on industry averages was not an adequate substitute for substantiation of actual business expenses.

Finally, the Tax Court agreed with the IRS that the report consisted primarily of the expert’s legal opinions as to the types of expenses that should be included in the cost of goods sold. The court held that legal conclusions are not a proper subject of expert testimony because the court, not the expert, determines the law. To be admissible, expert opinions must explain facts, not law.

A Florida plaintiff was awarded almost $815,000 after a chemical peel aggravated her rosacea. The spa employee who performed the peel admitted that she was negligent in failing to read the plaintiff’s disclosure of her medical condition.

The defendants contended that the chemical peel did not aggravate the rosacea. They sought to introduce expert testimony on the issue of causation, but the trial court excluded the testimony. The defendants appealed.

Facts of the Case

Johana Cinque went to Body & Soul Retreat in Coral Springs, Florida for a facial. Cinque suffered from rosacea, a chronic inflammatory skin condition. Cinque disclosed that condition on a form that the spa provided.

An aesthetician employed by Body & Soul, Gloria Sanchez, performed a chemical peel on Cinque’s face. Sanchez admitted that she administered the facial without reading the form that Cinque completed. If Sanchez had known Cinque had rosacea, she would have used a different product or tested it on her skin before performing the chemical peel.

While Cinque’s rosacea was mild before the chemical peel, manifesting as a rosy flushing of the cheeks, her face “became blistered, bruised, scabbed, and crusted, and it oozed” after the facial. Cinque testified that her face felt like it was burning during the procedure.

Prior to the chemical peel, Cinque’s face was smooth. Three years later, at the time of the trial, Cinque’s face was bumpy and easily turned red when exposed to the sun or temperature increases. Wearing the gear required for Cinque’s occupation as a firefighter paramedic also aggravates her rosacea. The bumps on her face form the same shape as the burn she experienced immediately after the chemical peel.

Plaintiff’s Expert Witnesses

Dr. Peter Wallach, a dermatologist, treated Cinque for rosacea before her chemical peel. She returned to him on the day following the chemical peel for burn treatment. He diagnosed irritant contact dermatitis that was caused by the chemical peel. He testified that Cinque’s rosacea was improving during his treatment but noted that her face was very red when he examined her. Dr. Wallach prescribed an antibiotic cream. During later visits, he prescribed medication to reduce the inflammation of her skin.

Dr. Quang Le, a dermatologist, treated Cinque after Dr. Wallach. His efforts to control her rosacea outbreaks were unavailing. He opined that the exacerbation of Cinque’s rosacea was caused by the chemical peel. He explained that damage to the top and mid-dermal layer of her skin changed her condition from one that was easily controlled to one that was difficult to control. He expected her to need a lifetime of treatment. He suggested that she explore laser treatment.

Cinque eventually stopped seeing Doctors Wallach and Le and stopped taking her medications. She testified that the medications were not working and she did not obtain further treatment from dermatologists because the treatment was ineffective.

Dr. Thomas Zaydon, a cosmetic surgeon, testified that the chemical peel had removed the skin’s protective barrier, permanently damaging Cinque’s face, producing scarring and aggravating her rosacea. He testified that a chemical peel should not be administered to a person with rosacea because it penetrates the skin’s protective barrier and worsens the inflammatory process.

Dr. Zaydon opined that Cinque suffered from a permanent injury to her skin and would suffer from periodic outbursts of rosacea. He testified that Cinque would never regain the appearance she had prior to the chemical peel and that she would need a lifetime of dermatological care.

Dr. Zaydon testified about various treatments that might benefit Cinque in the future, including laser treatments, stem cell treatment, and a deep tissue facioplasty. He also projected the cost of each treatment.

Defense Expert

The spa retained Dr. Evan Schlam, a dermatologist, to testify as an expert. He performed a 20-minute examination of Cinque. In his deposition, he testified that he observed mild rosacea during his examination and opined that the rosacea was not caused or permanently aggravated by the chemical peel.

Cinque was taking medication at the time of the examination. Dr. Schlam did not examine her when she was off her medication to determine whether the medication changed the appearance of her rosacea. He did not did not see a photograph of her before the chemical peel. He testified that it would have been helpful, but not necessary, to compare her appearance before and after the chemical peel. The rosacea he observed was so minimal that he deemed her prior appearance to be unimportant to his findings.

Dr. Schlam also testified that he assumed Cinque had a classic distribution of rosacea before the chemical peel because the medical records he reviewed did not specify otherwise. Dr. Schlam also assumed that a particular visit to Dr. Wallach was for rosacea even though the records of that visit do not mention rosacea.

Cinque moved to exclude Dr. Schlam’s testimony because it was not based on a reliable methodology or on adequate data, as Florida’s version of the Daubert standard requires. The trial court granted that motion. The spa based its appeal, in part, on the claim that the trial court erred by excluding Dr. Schlam’s expert testimony.

Daubert Analysis

The Florida District Court of Appeal agreed with the trial court that Dr. Schlam’s opinion was not based on a reliable methodology that was supported by adequate data. The appellate court concluded that Dr. Schlam did not have sufficient information upon which to base an opinion about the impact of the chemical peel on Cinque’s rosacea. He viewed no pictures of Cinque before the chemical peel. He made assumptions about the intensity and distribution of the rosacea based on Dr. Wallach’s medical records, but those records did not support the inferences he drew.

The trial court regard it as “unreliable to base an entire causation analysis on a one time examination while the patient was medicated for the subject condition.” The appellate court did not expressly adopt that reasoning, but did not question it. The decision should stand as a reminder to experts who perform an independent medical examination that admissible expert opinions must be based on adequate data, which a brief physical examination and a review of medical reports might not always provide.

The appellate court noted that, in some cases, existing medical records will give a physician enough data to support a medical opinion. In this case, however, Dr. Schram based his opinions “on assumptions not rooted in any facts actually contained in the medical records relied upon.” Perhaps reasonably drawn inferences can support an opinion if they are supported by facts, but Dr. Schram’s opinions were based on conjecture. His opinions therefore did not meet Daubert’s reliability standard and were properly excluded.

The U.S. Court of Appeals for the Fifth Circuit reversed a substantial verdict against Johnson & Johnson and its subsidiary, DePuy Orthopaedics Inc., and ordered a new trial after determining that the plaintiff’s lawyer made misleading remarks about the independence of the expert witnesses who testified for the plaintiffs in the case.

While Johnson & Johnson and the pharmaceutical industry, as well as a Wall Street Journal editorial, have touted the appellate decision as a huge win, the court of appeals agreed that the evidence supported the jury’s finding that the implants are defective. In the end, nothing in the court’s opinion will prevent the next jury from arriving at the same result based on the same expert testimony.

Hip Replacement Litigation

The appeal involved the second “bellwether” trial against Johnson & Johnson for allegedly defective DePuy hip implants. Although the first trial ended in a verdict for Johnson & Johnson, the next three trials resulted in verdicts for the plaintiffs. All of the plaintiffs’ victories are on appeal.

The second trial involved five plaintiffs from Texas. The jury awarded a total of $502 million to the plaintiffs. The trial court reduced that award to about $152 million because Texas places a cap on punitive damages.

In addition to appealing the judgment, Johnson & Johnson brought a motion asking for the verdict to be thrown out because the “plaintiffs’ counsel, Mark Lanier, concealed payment arrangements with two key expert witnesses.” The trial judge denied that motion, but the court of appeals agreed that the statements may have influenced the verdict and ordered a new trial.

The DePuy Implant

The cases involve DePuy’s “metal on metal” hip implants. A metal “ball,” or head, is implanted into the femur, while a metal cup is implanted into the hip socket. A metal liner fits into the cup. The head rotates against the liner, essentially serving the same function in the hip as the “ball and socket” bones they replace.

Early versions of hip plants raised safety concerns. Those concerns were largely resolved by using ceramic or plastic liners rather than metal liners. However, some plastic liners cause problems because debris from worn plastic can dissolve the surrounding bone. The industry eventually solved that problem by sterilizing the plastic liner with radiation, giving it a much longer life.

The plaintiffs alleged that DePuy designed an implant that returned to a failed concept by using a metal liner. They alleged that Johnson & Johnson began a marketing campaign to lure doctors away from products with plastic liners by misrepresenting the advantages of its metal-on-metal design. The plaintiffs claimed that Johnson & Johnson rushed the product to market without conducting clinical tests that would have revealed its flaws, and that it supported its marketing campaign with academic papers that purported to be neutral but were actually authored by DePuy.

Johnson & Johnson argued that metal-on-plastic might be a better design for older patients but that its metal-on-metal design has advantages for younger patients. It also contended that it made comparative risk information available to doctors. The jury rejected those defenses and found in favor of the plaintiffs.

The Merits of the Case

The court of appeals rejected DePuy’s claim that the metal-on-plastic design was a different product entirely and therefore could not be regarded as a safer alternative design of a hip implant. The court also rejected DePuy’s claim that federal and state regulation of hip implants preempted product liability lawsuits for the defective design of the specific implant at issue. In addition, the court rejected DePuy’s seemingly inconsistent claim that its hip implant is “unavoidably dangerous” and therefore immune from product liability claims.

Johnson & Johnson’s claim that it marketed the implants with an adequate warning met with no greater success. The warnings did not address the specific complications caused by metallic debris that the metal-on-metal device produces, including the risk that bits of metallic debris will cause specific kinds of bone and tissue damage that will need to be alleviated by future surgery. While two of the plaintiffs were not entitled to judgment on the failure-to-warn claim because there was no evidence that their doctors ever read or relied upon the inadequate warnings, the evidence supported the judgment for the other three plaintiffs on their failure-to-warn claims.

Finally, the court rejected a number of defenses that Johnson & Johnson raised in an effort to insulate itself from the judgment against its subsidiary, DePuy. As a letter responding to the Wall Street Journal editorial pointed out, the editorial’s celebration of DePuy’s appellate victory was incomplete and misleading, given its failure to acknowledge that DePuy lost on issues that went to the merits of its trial defense. The appellate victory focused on alleged prejudice to DePuy caused by plaintiff’s counsel, not on DePuy’s challenges to evidence that, according to the appellate court, was sufficient to prove its liability.

Prejudicial Evidence

The court decided that DePuy and Johnson & Johnson did not receive a fair trial. First, the court considered whether the jury should have been allowed to hear evidence that Johnson & Johnson subsidiaries violated American law by paying bribes to Saddam Hussein’s government in Iraq and to other governments worldwide. The court questioned whether Johnson & Johnson’s claim to have an ethical corporate culture, consisting of “wonderful people doing wonderful things,” should have been impeached by a subsidiary’s misconduct, notwithstanding Johnson & Johnson’s admission of its responsibility for that misconduct in a plea agreement when it was prosecuted for its subsidiary’s criminal behavior. More importantly, the court thought plaintiffs’ counsel crossed the line by inviting the jury to hold Johnson & Johnson responsible for marketing defective hip implants based on the bad conduct of its subsidiary alone.

Johnson & Johnson also described itself as “employee-friendly,” a description allegedly rebutted by a letter written by an employee who complained of race discrimination and a workplace in which racial slurs were tolerated. Again, even if the letter was admissible (the court suggested that it was barred by the rule against hearsay), the court concluded that it was used in closing arguments to suggest that the jury should punish Johnson & Johnson for condoning race discrimination, an allegation that was unrelated to the claim that it sold defective hip implants.

It isn’t clear that either of those issues, by themselves, would have motivated the court of appeals to order a new trial. The court made clear, however, that it viewed a new trial as necessary because of comments that plaintiffs’ counsel made about expert witnesses.

Expert Witness Claims

The court of appeals described the trial as a “war of experts,” including engineers and medical scientists. Prior to trial, the plaintiffs disclosed Dr. Bernard Morrey, Sr. as an “uncompensated” expert. An expert who is not paid is not required to prepare an expert report.

Plaintiffs’ counsel offered to pay Morrey, but Morrey declined payment. The counsel then offered to make a contribution to a charitable institution of Morrey’s choice. Morrey agreed, and the plaintiff’s counsel contributed $10,000 to a Catholic school that Morrey had attended. During the trial, counsel “repeatedly emphasized Morrey Sr.’s independence . . . and contrasted that independence with the purportedly biased and self-interested work of DePuy’s doctors.”

Morey Sr.’s son, Dr. Morrey Jr., performed orthopedic surgery to correct damage caused by the DePuy implant to one plaintiff and evaluated another plaintiff. The trial court allowed Morrey Jr. to testify to facts beyond his medical treatment, including his opinion that the metal-on-metal implant design was unsafe, because plaintiffs had designated Morrey Jr. as a nonretained expert (not just as a treating physician) prior to the trial.

After the trial, the plaintiff’s counsel gave Morey Sr. a check for $35,000 and gave Morey Jr. a check for $30,000. Counsel also designated them as retained experts for future trials. The evidence suggested that Morey Jr. had always expected to be paid something but was surprised at the size of the generous payment he received.

The trial court concluded that no agreement to compensate the experts existed when they testified and that counsel therefore made no misrepresentations about their “independence” during the trial. The trial court also noted that, even if the post-trial checks were viewed as compensation, they were so small in comparison to the amount that Johnson & Johnson paid to its expert witnesses that their existence would not have influenced the jury’s verdict even if they had been disclosed.

The court of appeals, however, concluded that the plaintiff’s counsel either knowingly or unknowingly misled the jury and that this conduct prevented Johnson & Johnson from challenging the independence of the two experts. Whether the counsel’s misconduct affected the outcome was not the appropriate test. The only question was whether the misconduct prevented Johnson & Johnson from fully and fairly presenting its case.

If Johnson & Johnson had known of the pretrial contribution of funds to a charity of Dr. Morey Sr.’s choice, or had known that Dr. Morey Jr. expected to be compensated, Johnson & Johnson would have relied on those facts in challenging the purported independence of the two experts. Those facts might not have affected the outcome, but Johnson & Johnson was entitled to a fair trial, and the court decided that Johnson & Johnson did not receive a fair trial because those important facts were never disclosed. (Of course, Johnson & Johnson could have asked Dr. Morey Jr. during cross-examination whether he expected to be compensated, an omission the appellate court did not address, but Johnson & Johnson arguably had no reason to ask the question when it had no reason to expect an answer that would assist its defense.)

The court’s suggestion that a gift to charity should be treated as compensation that induces testimony might be strained in the absence of evidence that Morey Sr. benefited from the contribution or that it influenced his decision to testify. Nor was there compelling evidence that Morey Jr.’s expectation of being paid was induced by plaintiff’s counsel, who clearly made no express promise to pay for the expert’s testimony.

Still, the evidence that made the appellate court suspicious could arguably have caused the jury to be suspicious of the experts’ independence and might have been used to the defendants’ advantage at trial, so it is not entirely surprising that the court vacated the judgment and ordered the case to proceed to trial again.  Since none of the substantive evidence about the defective hip implants is likely to differ at the new trial, it is not clear that the new trial will produce a significantly different result. In fact, Johnson & Johnson is taking a risk that the next jury will award even more in damages, but that is a strategic risk that a litigant who seeks a new trial must accept.

Litigants who oppose the removal, or even the covering with tarps, of Charlottesville, VA statues commemorating Confederate generals presented an expert in mourning to strengthen their claim that the city council was required to unveil the statues. The city council covered the statues as the city (or at least some of its residents) mourned the deaths that resulted from a clash between White Nationalists and protestors against racism.

Civil War Statues in Charlottesville

A statue of Robert E. Lee astride a horse stands at the highest point of a Charlottesville park. The parkland was donated to the city in 1917. At that time, the city named the park Robert E. Lee Park. The same donor gave additional parkland to the city in 1919. The second park features a statue of Stonewall Jackson, and the park was named Jackson Park.

In February 2017, the city council renamed the parks Emancipation Park and Justice Park in recognition that honoring Civil War generals who fought to preserve slavery is offensive to people of all races who cherish the American values of freedom and equality. The council debated removing the statues, but its members were concerned that the removal was prohibited by state law and would violate the terms under which the land was donated to the city.

City leaders voted 3-2 to remove the statues, but they were left in place pending the resolution of legal issues. In August 2017, however, the council voted to cover the statues with tarps in response to the murder of Heather Heyer by a white supremacist at a Unite the Right Rally. The rally was motivated in part by the city’s decision to remove the statues. The city announced that it was mourning Heyer’s death, as well as the deaths of a Virginia State Police lieutenant and a trooper-pilot, at the divisive rally.

Mourning Expert

A number of individuals, including descendants of the statues’ donor, as well as the Monument Fund and the Sons of Confederate Veterans sued the city to prevent it from implementing its vote to remove the statues. The lawsuit includes a claim for damages, although it is difficult to understand why removing the statues would be any more harmful to individuals in the community than leaving them in place.

After the city covered the statues, the plaintiffs in that lawsuit asked the judge to order the tarps removed, contending that the mourning period was a “pretext” to cover the statues indefinitely in lieu of taking the potentially unlawful action of removing them. The plaintiffs pointed to a city council resolution to find a more elegant way to screen the statues from public view. The plaintiffs’ attorney persistently but inaccurately characterized the plastic tarps that cover the statues as “trash bags.”

In support of their claim, the plaintiffs called a funeral director as an expert witness on the subject of mourning. The court allowed the witness to testify over objection that he had no expertise in a community’s collective mourning in the aftermath of a traumatic event.

The plaintiffs wanted to establish that mourning periods never last for five months, and that the continued covering of the statues was therefore not consistent with a mourning period. The plaintiffs asked the expert witness, John Mathis, about religious mourning practices. The judge ruled that the proposed testimony was irrelevant, presumably because the city council is prohibited by the Constitution from engaging in a religious practice.

Mathis testified about “public mourning practices for deceased police officers or firefighters: mourning badges, bunting, flags at half mast, wreaths and processions.” When the city’s attorney asked Mathis about the significance of a one year death anniversary, Mathis testified that it is significant to family members but not to people who attend a funeral. That might come as a surprise to American citizens who mourn the deaths of President Kennedy and Martin Luther King, Jr. on each anniversary of their deaths.

Court’s Decision

After taking some time to consider the evidence, the judge ruled that the tarps must be removed. The court based its ruling on its perception that the city intended to cover the statutes permanently, which interferes with viewing the statues in violation of state law.

According to the judge, “it is not a matter of the ‘mourning’ having gone on too long.” Rather, the city’s failure to set a firm date for removing the tarps constituted a failure to prove that the coverings would not be “anything other than permanent.”

At some point, the court will need to decide the merits of the lawsuit, including the city’s claim that the state law does not apply to statues erected before the law’s effective date. The court’s ruling on the motion to remove the tarp may signal its belief that the law applies and that state law will force Charlottesville to continue to commemorate Civil War generals who fought against the emancipation of slaves.

Should rap lyrics be taken as evidence of criminality? Expert witnesses faced off over that question in the trial of three young men who were charged with felony murder in Knox County, Tennessee.

Zaevion Dobson Murder

Brandon Perry, 23, fired a number of shots in in Northwest Knoxville. The shooting related to a dispute between Perry and the uncle of his girlfriend’s child. Two hours later, someone shot at the home of Perry’s mother in East Knoxville.

Video from a squad car shows Perry and Christopher Bassett, 22, arriving at Perry’s mother’s home shortly after the shooting. Surveillance footage suggests that Perry and Bassett met up with several other young men. Six to eight men traveled to Lonsdale, where they began shooting. It has never been clear whether the men had a specific target in mind or how the Lonsdale shooting related to the shootings in East Knoxville.

Fifteen-year-old Zaevion Dobson played football for a Knoxville high school. Dobson, who had no gang involvement, reportedly shielded two girls when he heard the shots being fired. Dodson was killed in the shooting. President Obama mentioned Dobson’s heroism in a State of the Union address.

Charges Filed

Prosecutors charged three men with felony murder: Bassett, Richard Gregory Williams III, 23, and Kipling Colbert Jr., 22. Before the trial started, Williams was convicted of trying to kill a witness to the Dobson shooting. Prosecutors argued that his effort to kill a “snitch” demonstrated his gang involvement.

However, Bassett was a college student with no obvious gang affiliation. It wasn’t necessary to prove that any of the defendants were gang members given the other evidence in the case, but prosecutors likely believed that jurors would more readily convict if they viewed the defendants as gang members.

Gang membership is not itself a crime. The First Amendment protects freedom of association, including membership in a social organization. Whether the organization is the NRA, the Shriners, or a group that that society labels as a “gang” makes no difference to the constitutional right to associate with others.

On the other hand, membership in a criminal organization may suggest that members of the organization shared a common motive to commit a crime that benefited the organization. The First Amendment does not protect the right to associate for the purpose of committing a crime.

Rap Evidence

Prosecutors advanced the theory that the defendants belonged to the Bloods and that they committed violence in Lonsdale because it is the territory of a rival gang, the Crips. To demonstrate the defendants’ gang involvement, prosecutors introduced evidence of a rap video.

The video was posted to YouTube several months before the shooting. Several young men are lip-syncing in the video to “a rap song pledging allegiance to the Bloods street gang and describing street violence” — at least, that’s how the prosecution viewed the video. Bassett, Williams, and Colbert are among the participants. Basset appears, unarmed, for about half-a-minute in a five-minute video.

Again, rapping about gang violence is not a crime. The First Amendment guarantees freedom of speech, including the freedom to make a statement about the world as the speaker sees it, subject to very limited exceptions.

However, freedom of speech provides no absolute guarantee that the speech will not be used as evidence in a criminal trial if the speech is relevant proof of the crime. The government may tread upon the First Amendment, however, when it uses a person’s speech merely to suggest that the speaker should be punished for ideas that the speaker expressed. Prosecutions in other cases have been problematic to the extent that they use rap lyrics to suggest that the defendant is a criminal because the defendant raps about crime.

Conscientious judges are careful to prevent prosecutors from using protected expression to suggest that a defendant is bad because his lyrics are bad. When judges allow rap lyrics to be used as evidence, experts in rap are sometimes used to explain rap culture to juries who might have a stereotyped view of rappers.

Bassett’s lawyer tried to keep the video from being shown at the trial. The judge ruled that the lyrics were relevant. In particular: “Pull up. Pop out. Everybody get down if you don’t wanna get smoked.” According to the judge, “This is similar to the act and motivation the state alleges occurred in this case.”

One reasonable response to that reasoning is “So what?” The judge could not have believed that the lyrics described an apparently spontaneous crime months before it was committed. Moreover, lip-synching, like singing along with a song, cannot reasonably be seen as endorsement of the song’s lyrics. The defendants’ lawyers were legitimately concerned that the jury would convict the defendants because they were offended by the song lyrics or would use the song as evidence of bad character — a use that the law of evidence forbids.

Gang Expert Testimony

To bolster their case, prosecutors called Sgt. Tom Walker, a gang investigator for the Sheriff’s Office, as an expert witness. The investigator testified about the rivalry between the Bloods and the Crips. The Bloods claim the east side of Knoxville as their territory while the Crips claim the west side, including Lonsdale. He also testified about retaliation as a gang imperative.

A witness heard Colbert say “What’s bracking?” Walker testified that the Bloods use the phrase to mean “What’s happening?”

More controversially, Walker interpreted the rap video. He expressed the opinion that it is “definitely a Bloods song.” He based that conclusion in part on the fact that people in the video were wearing red bandanas and that red is a Bloods color. Of course, members of the Heartbeats often wore red corduroy jackets when they performed in the 1950s, but nobody accused them of being gang members.

On cross-examination, Walker admitted that the police had no record of any defendant being associated with a gang. Walker had testified as a gang expert in 29 trials, and this was the only one in which the police had no record that the defendants were gang members.

Walker also admitted that he is not an expert in African-American culture or rap music. He does not generally listen to rap music. He knew that the phrase “studio gangsta” refers to someone who pretends to be in a gang, and admitted that he was unaware that some defendants had social media accounts that promoted songs, including the one that was introduced as evidence.

Rap Expert Testimony

Erik Nielson testified for the defense as an expert in rap music. Nielson, an associate professor at the University of Richmond, wrote an article for Rolling Stone that condemns an “increasingly popular law enforcement tactic: using rap lyrics as evidence.” Nielson notes that prosecutors ask juries to take rap lyrics literally rather than as artistic expression, something that is not done in any other expressive genre.

Nielson described “studio gangsters” as artists who create a studio persona as gangsters that does not reflect their real life. Nielson also testified that the video introduced into evidence is a knock-off of a song called “SixDouble0” made by Chicago rapper Edai.

The defense argued that the defendants appeared in the video because they were aspiring rap artists, not gang members. Building a defense on Nielson’s testimony, they argued that the defendants were studio gangsters, not actual gang members.

Verdict

The evidence of gang membership was slim and the use of the video as evidence is troubling. At the end of the day, however, the video may have contributed little to the verdict, although it might create an appeal issue that could favor the defendants. Using expression of opinions that do not directly relate to a charged crime is prejudicial and in this case, arguably a violation of the First Amendment.

Other evidence, however, may have been more persuasive in convincing the jury to find all three defendants guilty. Bassett was the only defendant found guilty of first-degree murder. He was given an automatic life sentence for that crime. The judge sentenced him to an additional 35 years for his convictions of attempted murder.

Colbert and Williams were found guilty of facilitating first-degree murder as well as several other crimes. Colbert was sentenced to 107 years and Williams was sentenced to 143 years. All of the convictions are likely to be appealed, and the competing views of the expert witnesses about using rap lyrics as evidence will be an important issue for the appellate court to consider.