(RIVERSIDE, Calif.) — An appellate court in Riverside, California, overturned the murder conviction of a man who was sentenced to 129 years to life in prison, ruling in part that the use of a rap video as evidence in this case violates the state’s new “Decriminalizing Artistic Expression Act” – a landmark law, which was signed by Gov. Gavin Newsom on Sept. 31, 2022.
Travon Rashan Venable, Sr., was convicted of first degree murder and attempted murder in connection to a 2014 drive-by shooting. He pleaded not guilty.
According to court documents obtained by ABC News, prosecutors alleged that Venable and a fellow gang member were involved in a drive-by shooting. Venable was accused of driving the car while his co-defendant fired shots.
The appellate court judge ruled in a Feb. 17 opinion obtained by ABC News that the “admission of the rap video without the new safeguards was prejudicial to Venable” and the prosecution’s emphasis on the rap video during the trial “likely had an effect on the outcome.”
The court ruled that although the law wasn’t in effect during Venable’s trial, it applies retroactively to cases that are not final and under appeal.
The court reversed the conviction and remanded Venable’s case for a new trial.
The ruling came after the California Supreme Court transferred the case back to the appellate court to reconsider the case in light of the new law.
Jacquelyn Rodriguez, the public affairs officer for the San Bernardino District Attorney’s office, which prosecuted this case, told ABC News on Wednesday that Venable’s case is “the first case in the state that has been reversed due to the new law.”
“Right now we’re in a waiting phase to see if the appellate court will give jurisdiction back to us,” she added.
The video
According to court documents obtained by ABC News, prosecutors introduced a YouTube video found by police where Venable and other members of the California Gardens gang are seen “flashing gang signs” and displaying “guns, drugs, and money.”
Prosecutors alleged that a rap in the video, “Got word from a bird[] that they did that [racial slur] dead wrong/Slid up Medical and left that [racial slur] head gone,” was boasting about the drive-by shooting, but according to court documents, Venable didn’t say anything in the video.
“Nothing in the song indicates the rapper or others in the video had personal knowledge or involvement in the shooting, only that they had heard about it,” the court’s opinion said.
In the ruling the court pointed to testimony from a gang expert who testified that the gang as a whole took credit for the shooting.
“There is substantial doubt whether the trial judge would have admitted the video evidence under the new standard, and it’s clear the prosecution used that evidence to tie Venable to the specific crime. The remaining evidence of Venable’s involvement was not strong,” the court wrote in the opinion, pointing to testimony from Venable’s aunt who provided him with an alibi and testimony from “a police informant who gave a series of conflicting accounts of the incident and had testified Venable was being framed.”
Venable’s attorney Jim Gass, who objected to the inclusion of the rap video as evidence, told ABC News in a statement on Wednesday “this is the type of case that created the need for the new evidence code regarding rap lyrics.”
“The conviction was overturned because the appellate court could see that there was very little evidence against Venable other than the video,” he added.
The new law
The California law, which was dubbed the “rap lyrics bill,” became the state’s Evidence Code section 352.2 and seeks to ensure that “creative expression will not be used to introduce stereotypes or activate bias against the defendant, nor as character or propensity evidence,” according to the text of the law.
In reversing and remanding Venable’s conviction, the court wrote, “It’s uncontested the trial judge did not consider those additional factors before admitting a rap video in Venable’s trial and that the trial, as a result, didn’t comply with the new requirements for admission.”
Rap lyrics have been used by prosecutors in the U.S. for decades as evidence in criminal cases, helping put rappers behind bars. But it wasn’t until lyrics were used in the May 2022 indictment of Grammy-winning rapper Young Thug on gang-related charges that the controversial practice sparked a movement in the music industry to “Protect Black Art,” and fueled a wave of support for legislation seeking to limit the practice.
The California bill is the first legislation that explicitly sets guidelines for the the use of rap lyrics in court to be signed into law in the U.S.
Similar bills that seek to set guidelines that could limit the use of rap lyrics in court have been introduced in states like Maryland, New York, New Jersey and Missouri, and a federal bill, known as the “Rap Act,” was introduced in Congress last year.
Some outline more restrictive guidelines than others, but the bills essentially limit the use of rap lyrics in court by requiring a judge to consider whether there’s a factual link between the lyrics and the alleged crime and whether introducing the song or video could inject racial bias into the case.
Rodriguez said that if Venable’s case comes back to the Superior Court, the DA’s office “would review it,” and consider the new law.
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