The former White House occupant’s second impeachment trial will soon begin. It is alleged he incited a horde of overwhelmingly white ultranationalists. The outcome was a graphic unfolding of domestic terrorism for all to see. Extremists placed politicians in extremis.
As I watched authentic acts of terrorism at the Capitol, my thoughts went to the case of a former client, Olutosin Oduwole, also known as Tosin. He was wrongly accused of attempting to make a terrorist threat in July 2007 under Illinois’ anti-terrorism law, which the state had enacted a few years prior.
Then 22, Tosin was attending college in southern Illinois when local police officers searched his locked and abandoned car, immobilized by an empty gas tank. Police found a crumpled piece of paper under a seat with words written in his hand, including these: “send $2 to….paypal account if this account doesnt reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!” (Editor’s note: Several months prior, a Virginia Tech University student had shot and killed 32 people on campus and wounded 17 others.)
Graphic and violent stanzas are a staple of gangsta rap. Tosin was a talented lyricist of that genre with an impressive YouTube following. In his apartment were binders with hundreds of pages of his notes and compositions. These were seized by the same police agency while executing a search warrant. This extensive collection of lyrics, statements by friends explaining the musical genesis of words on the paper from the car, and the failure to identify any violent tendencies of young Tosin were all insufficient to persuade the authorities to rethink what they were doing. This Black man of Nigerian heritage would be prosecuted as a terrorist. Bail was set at $1 million.
Before trial, the judge rejected our arguments that the charge should be dismissed because it criminalized speech and violated the First Amendment.
Madison County was then 8% African American, substantially below the national proportion. Precisely one Black citizen appeared in the jury pool at the start of the 2011 trial. Over the defense’s objection, he was promptly excused by the prosecutor. Despite the county being the home to universities and colleges, I saw few students in the courtroom that day. One person in their 20s made it onto the jury. The rest of the group was predominantly rural and in their late- middle ages or elderly years. The young person on the jury seldom listened to rap, but at least she had heard of the musical style. Most of the jury panel had not.
At trial, the state’s case was replete with images of guns, college shootings, and inflammatory yet harmless videos from our client’s laptop. Our defense was that the prosecution’s case was bereft of evidence that Tosin had attempted to communicate a threat and that the words on the paper were lyrics. To underscore this point, a criminologist and expert in rap and hip-hop culture appeared for our side at trial. She concluded that the words prosecutors viewed as a threat were simply the formative stages of a rap song.
Despite her expert opinion and testimony from friends describing Tosin’s process of writing those lyrics, when the all-white jury’s verdict was handed to the white clerk, the pre-ordained outcome was confirmed. Guilty. The white judge imposed a five-year prison sentence at the Illinois Department of Corrections.
Two years later, a unanimous panel of the Fifth District Appellate Court released its enlightened opinion, stating that the evidence put forth by the prosecution was insufficient to convict Tosin. Sidestepping the First Amendment issue, the court held that “The record reveals that there was no evidence of a communication of the writing in any form and no evidence that the defendant ever had a plan to disseminate it.” The decision constituted an acquittal by the appellate court, thus foreclosing the state from retrying Tosin.
I recently contacted Tosin, who now has his own real estate company in Atlanta. I asked for his perspective on his ordeal in relation to the upheaval that struck the Capitol a few weeks ago.
“It’s funny how real terrorists can not only threaten terror but actually carry it out at, of all places, in the nation’s capital and still get to go home that day,” Tosin said. “I was accused of attempting to make a threat, and even though widely believed to be false, I was paraded on the media as someone to be feared and locked away. The irony speaks for itself.”
Jeffrey Urdangen is Of Counsel at Riley Safer Holmes & Cancila LLP. From 2003-2019 he was a Clinical Professor of Law and Director of the Center for Criminal Defense at the Bluhm Legal Clinic, Northwestern Pritzker School of Law.