Fifteen years ago, a Louisiana jury convicted 22-year-old McKinley "Mac" Phipps--then a rising star on the famed hip hop label, No Limit Records--of manslaughter in the shooting death of a young concertgoer. He was sentenced to thirty years of hard labor for a crime that, to this day, he insists he did not commit.
The state's case was flimsy 15 years ago, but over the last couple of years, outside investigation has revealed evidence of grave police and prosecutorial misconduct, making Mac Phipps's continued incarceration unfathomable to any rational person. And yet, thanks to a criminal justice system that has become so broken that it tolerates--and even seems to wink at--flagrant abuses of power, he is still behind bars.
Before the charges, life was promising for Phipps, a rapper who, thanks to talent and hard work, quickly rose to national prominence. His fame, however, appeared to make him a target in the eyes of law enforcement.
Despite the fact that another man confessed to the crime--and that the government did not have forensic evidence connecting Phipps to the shooting--the prosecutor went after Phipps anyway, relying on a series of eyewitnesses who testified that he was the shooter.
That testimony has since unraveled. Prosecution witnesses have now come forward to insist that they were threatened and coerced into testifying falsely against Phipps. Still others have come forward and said that police and prosecutors ignored their statements that Phipps was definitely not the shooter. Reportedly, the prosecution also failed to disclose these witnesses to the defense despite a legal obligation to do so.
Coercing false testimony. Ignoring or suppressing contradictory evidence. Failing to disclose evidence helpful to the defense. Each, by themselves, are egregious forms of prosecutorial misconduct. But the disturbing tactics did not stop with witnesses. Compounding the situation in Phipps's case was the prosecutor's blatant attempts to attack Phipps's character during trial by using his lyrics to exploit well-worn stereotypes of the hyper-violent black man.
Phipps's prosecutor followed advice commonly given to trial attorneys: tell a story that fits with jurors' understanding of the world. In this case, that meant the prosecutor - using Phipps's professional identity as a rapper - painted a picture for the all-white jury of Phipps as a violent gangster who must have committed the crime. Beginning with his opening statement and continuing in his closing argument, the prosecutor used Phipps's rap persona and lyrics - remixed for special effect - to carefully construct a story of Phipps's guilt.
Rap artists adopt monikers, create entertaining personas, and work hard to foster and maintain their images, even if they run counter to their actual personality. In this case, the prosecutor repeatedly referred to Phipps's moniker - Mac the Camouflage Assassin - to suggest Phipps was a violent killer. What the jury never learned was the innocent - if not juvenile - explanation for the name. Phipps was dubbed The Camouflage Assassin during high school because he really liked kung fu flicks and he moved his hands like he was wielding a sword. The prosecutor left that part out.
Like the rapper he was trying to convict, the prosecutor engaged in lyrical remix, only in this case, it was for nefarious purposes. During opening and closing statements, he used Mac's lyrics to present a deceptively simple equation, one that would result in a conviction. "This defendant who did this is the same defendant whose message is, 'Murder murder, kill, kill, you f**k with me you get a bullet in your brain,'" said the prosecutor. "You don't have to be a genius to figure out that one plus one equals two."
Clearly the prosecutor's narrative resonated with at least one member of the jury, the foreman no less: "I don't listen to that s**t, but the music might have been the problem. The rap got his mind all messed up. He was living a life that he thought he was a gangsta. He was making it big time with the gold chains and all that s**t that went with it. To shoot somebody in a public place on the dance floor, you gotta think you're a bad son of a b***h."
Perhaps the impact of the lyrics would have been different had the prosecutor told the jury that that the lyric he was quoting was never actually written by Phipps. In fact, the prosecutor spliced together lyrics from two different songs Phipps wrote and then, making matters worse, deceptively altered them to make Phipps sound as dangerous as possible.
And yet, even after hearing the prosecutor's mangled version of the lyrics, two jurors still weren't convinced and voted against conviction. But unfortunately for Phipps, Louisiana--America"s incarceration capital--is one of only two states that allow juries to convict with a nonunanimous verdict. (Interestingly, in Louisiana this traces back to a Jim Crow era law intended to funnel more emancipated black bodies into the state's privatized convict-leasing system.)
Sure enough, he was convicted, 10-2.
Setting aside Louisiana's very special place in our nation's criminal justice system, Phipps's case strikingly demonstrates an all too common scenario of prosecutorial overzealousness, even misconduct, nationwide. Change some witness testimony. Ignore, omit, and hide other witnesses. Tell a good story that relies on remakes of classic racialized stereotypes. Engage in character assassination. For Phipps, the result was a conviction and thirty year sentence, just as he began to see all of the possibilities his life had in store for him.
Today he faces the prospect of an additional fifteen years of incarceration, despite all the new evidence and information suggesting he was convicted wrongfully. He cannot be paroled because he will not confess to a crime he says he did not commit. And based on the record and information available at the time, courts have denied his appeals. Phipps's attorneys can file a petition for a new trial but resolution of that matter could take years and would likely be unsuccessful.
At this point, he has almost no relief available to him in the courts because the criminal justice system prefers finality and certainty of verdicts. It's too bad if those verdicts were unjust.
Glimmers of hope remain. Based on the newly available information, Phipps's attorneys asked the District Attorney last year and again this year to review the case. Unsuccessful the first time, it remains to be seen what will happen with the second request. Phipps's other current hope is that Louisiana's governor will grant clemency. (A petition in support of his clemency application was recently posted here.) Until then, he must wait, like so many others.
Phipps's case is not an outlier in any respect. Federal and state prosecutors nationwide use rap lyrics and rap videos in criminal trials to convict defendants. As we have noted before, it's a practice that is alarming because of its scope, its effectiveness, and its obvious dependence on racial stereotypes and biases.
What's more, across America, men and women who were unfairly convicted languish in jails and prisons. Those cases and stories rarely receive any attention from the legal system, the media, and the public. Fortunately for Phipps, the media has taken note and well-known artists have publicly offered him their support.
Hopefully, these efforts to free Phipps will draw attention to the needs of others. For his sake, for the sake of other inmates, and for all our sakes, the public must demand that prosecutors focus on serving justice, not just filling prison cells.
Enough is enough.