What Went Down At The Afroman Trial?
Last week a trial result in Ohio made the national news. While we like to see the general media pick up on courtroom drama, it's worth digging a little deeper into publicized cases. The most interesting trials tend to have wrinkles and layers that don't make their way into the wire reports or the mainstream press.
The case in question was a defamation and invasion of privacy case brought against Joseph Edgar Foreman, a performer better known as Afroman. While he's been recording music for over 25 years, Afroman is best known for a song released on his second album of the same name, “Because I Got High,” that went platinum in 2000 and made its way into various movies and other mass media.
In August of 2022 the Adams County Sheriff's Office executed a search warrant on Afroman's home, ostensibly on suspicion of kidnapping and drug trafficking. The officers didn't find anything that enabled them to bring charges, but in the process of executing the warrant they damaged the gate and door to the house, seized approximately $5,000 in cash, and damaged the home security system, though not before the cameras recorded footage of the officers wandering through the building. Afroman was not personally present, but his wife recorded additional footage of the incident on her cell phone.
The raid reportedly caused $20,000 in damage to the home and when the police returned the cash taken from the house, $400 appeared to be missing. Understandably upset by the raid and the damage, Afroman released several songs mocking the police officers who performed the search. He also released music videos online including actual surveillance camera footage of the search. While the songs and videos aren't a legal brief, they do make a number of very good points, such as questioning why the police felt the need to disable Afroman's video cameras, rifle through his suit pockets, and carefully scrutinize a lemon pound cake sitting on his kitchen counter, as though tempted to cut themselves a slice during the raid. The songs are also full of insults, calling one “Officer Beetle Bailey,” and others “Private Pyle,” “Officer Pound Cake,” “Officer Receding Hairline,” and “Deputy Dipshit.” There are also more vulgar insults mixed in, various versions of “I slept with your wife” and “you're a homosexual.”
Now it's legal to execute a search warrant even if no evidence of a crime is ultimately discovered. But it's obviously a bad look for police to break into someone's home and cause a bunch of property damage if the homeowner turns out to be totally innocent. And while the Adams County Sheriff's Office claimed that the $400 discrepancy between the amount recorded as seized and the amount returned was the result of a counting/inventory error, that too is at best embarrassing sloppiness by law enforcement officers. In light of this, most folks would have simply accepted the criticism and insults in the music videos and tried to move on.
But for reasons known only to them, seven police officers from the Adams County Sheriff's Office decided not to do that and sued Afroman for defamation, invasion of privacy, and unauthorized use of their likenesses in commerce. If you're thinking “that seems like a case that should be thrown out immediately on a motion to dismiss,” the ACLU agreed and filed a very compelling amicus brief stating just that. But while the judge dismissed some of the officers’ claims he allowed the defamation and false light claims to go to trial, which they did earlier this month.
Videos from the trial have been surfacing online all week, likely because Afroman himself is a relentlessly online performer and very astute at viral marketing. I recommend all of them, but there are some highlights that give a flavor for the proceedings.
1. Dress for Success
Afroman came to trial in a matching suit and tie covered with American flags. He testified while wearing red rimmed glasses that somehow also had small American flags over the lenses. Based upon this you might assume that he would come across as unserious or disrespectful while testifying. But if you watch the videos, his courtroom demeanor is pitch perfect under the circumstances. He sits up straight, looks right at the questioner and answers all of the questions directly and forcefully. While wearing what looks like a Halloween costume, he comes across as deadly serious. And while he's clearly very angry about the situation, he explains why he is upset rather than simply arguing with the questioner on cross examination.
https://youtu.be/rE8mtNCsihE?si=AaOjbXukpFPMam2y&t=1661
In contrast, I note that several of the plaintiff police officers showed up to court in extremely casual clothing. One testified in a polo shirt, another in khakis and an ill-fitting blue button down. And when coupled with poor posture—one officer sat so far back in his seat that he looked as though he was about to put his feet up—the overall impression that the plaintiffs make is extremely poor.
We've written before about what to wear to court, and while not every witness needs to wear a suit and tie, they all need to convey that they take the trial seriously. I wouldn't tell my clients to show up to trial dressed like Afroman but given the choice you'd be better served to do that than to show up in a polo and jeans and plop down on the witness stand like you're about to watch a football game. And this is particularly true when the witness is a plaintiff asking the jury to award them over a million dollars.
2. It Pays to Know the Elements of the Claim
One of the plaintiffs, Randolph Walters, claimed to have been terribly harmed by Afroman lyrics and statements that said, in effect, that he'd had sex with his wife. While obviously not a friendly thing to say, in the context of quips like “Officer Receding Hairline” it's fairly clear that this is an insult directed at someone whom the artist doesn't like rather than a strictly accurate confession of an affair. Say what you will about Afroman’s music videos, the “Reynolds Pamphlet” they are not.
So, this is a tricky issue when it comes to bringing a defamation claim. If a statement is so obviously false that nobody would believe it, it isn't defamatory even if it's insulting. Saying that I robbed a grocery store is a harmful lie and potentially defamation. Saying that I stole the Ark of the Covenant is a preposterous lie and clearly not defamation. On some level Walters seemed to understand this, but it went wildly wrong on cross examination.
Attorney: You’re claiming that the defamation statement is that he had sex with your wife? We all know that’s not true, correct?
Walters: “I don’t know.”
Attorney: “You don’t know if your wife is cheating on you or not?”
Problem is, defamation can't be obviously false, but it also can't be true. And it’s the plaintiffs’ burden to prove that the statement isn't true. So, saying that he's “not sure” not only makes the plaintiff look ridiculous, it actively undermined his case. If his wife were having an affair with Afroman that would be a bizarre coincidence, but also not defamation.
3. If You’re in a Hole, Stop Digging
Sometimes you cross a witness and every clever trick and turn of phrase you prepped lands perfectly. You feel like God's gift to the trial bar and the witness walks away crushed. And sometimes the lines that sounded good in your head fall absolutely flat and the witness puts up a genuine fight. As we've written about before, it is crucial to recognize that not asking questions on cross examination is an option and sometimes it's your best option. You shouldn't give up on cross just because you get pushback. But if your medium punches aren't landing, you’ve got to stick to the best material and cut the worst. And if your best shots are failing catastrophically, you’ve got to sit yourself down before you burn your case to the ground.
Do not do what the plaintiffs’ lawyer did in the Afroman trial and repeatedly toss weak sauce rhetorical questions at the witness so that he can crush them back to you.
Attorney: So, you saw how upset the plaintiff was. You heard the testimony about her children. You heard the testimony at the depositions about Randy Newland's daughter who came home upset. You heard all that but you're still posting stuff—
Afroman: Yes, because I understand that it was his fault and all of their fault for coming to my house in the first place. So, if they hadn't come to my house their children wouldn't be saying nothing. None of this would be going on if they had done their research and did things right. So, all of this is their fault and now they want to sue me for their mistake.
Attorney: Is there anything that could change your mind about what you’re doing to these deputies?
Afroman: Is there anything that could change my mind about the fact that they shouldn’t have been at my house in the first place? Is there anything that could change my mind about the fact that my money shouldn’t have been touched in the first place? No.
https://youtu.be/rE8mtNCsihE?si=WjVA8p20vjarsjdX&t=1743
It’s possible that the plaintiffs were sunk anyway but giving the defendant an open-ended question that amounts to “please explain why you're right and we're wrong” is basically never going to end well for you. And it's a particularly bad strategy in a case where your clients broke into the defendant's house with machine guns and he's accused of calling them some mean names!
