Last Updated: March 10, 3 p.m. p.m.
The State Attorney’s Office has yet to file a charge against Joseph Washington almost seven weeks after the 18-year-old Matanzas High School student’s arrest on an accusation that the rap song Washington composed and posted to SoundCloud was a death threat against a dean at Matanzas. In an unusual disclosure by its own prosecutor on Monday, the State Attorney’s Office also appears indecisive as to whether to file a felony or a misdemeanor charge, an indecision that signals the tenuousness of a case initially cast by the sheriff’s office as a second-degree felony charge, and that quickly lent itself to first amendment implications, as even the prosecutor also acknowledged.
Washington, who was freed on his own recognizance, has twice been arraigned since, the last time on Monday, and twice heard the court say he’d have to come back for another arraignment, since the state wasn’t ready with a charge to arraign him on. He’ll be due back on April 12. Meanwhile he’s been walking with a GPS ankle monitor.
The failed arraignment on Monday nevertheless opened a window on the defense’s impending First Amendment strategy, and on the matter of the ankle monitor that Washington has had to wear.
“This is wrong. That’s all I would say,” Assistant Public Defender Spencer O’Neal told Circuit Judge Terence Perkins. “This is unconstitutional infringement and censorship of somebody’s right to speak, free speech. We don’t put ankle monitors on Eminem when he talks about possibly doing something fictionally to his Baby Mama Kim, we didn’t do that, because it’s wrong. We shouldn’t be doing that to Mr. Washington.”
Washington had been called into the dean’s office over a dress code violation. Asked to address it, Washington allegedly responded with an obscenity directing the dean to perform an oral act, and was suspended. Washington proceeded to post “Bii Blouga Racial Profiling,” a nearly seven-minute song that strings together an amalgam of racist, sexist and obscene lyrics seemingly directed at the 31-year-old dean and his wife, all in the mouth of a character calling himself the Grim Reaper, and including what sounds like an explicit threat against the dean or his wife (“You should be afraid of me cause I’ll come and take your life / Smoke ya with this Uzi like…”) Washington was arrested a week later after the recording made its way to the Matanzas administration’s ears and the dean became concerned for his and his family’s safety. Washington was booked at the county jail on a second-degree felony charge of written threats to kill, and quickly released.
The charge must be ratified by the State Attorney in what’s called an information for the case to proceed. Meanwhile, Washington must comply with conditions of his pre-trial release terms: no bond, but a no-contact order with the dean and his family, no going near Matanzas High School, wearing the GPS monitor at all time, and paying for it. It costs $3.10 per day. The bill so far: $130. Washington is indigent.
O’Neal had filed a motion to have the ankle monitor removed. He finds it unnecessary and a financial hardship on the Washington family. He and Assistant State Attorney Tara Libby argued that motion before the judge Monday. The judge opted not to have the ankle monitor removed–but didn’t rule on the motion, either, since a subsequent motion challenging the First Amendment legality of the state’s claim will follow immediately once the state does file its charge. “I do want to hear that argument if it’s still in this court,” Perkins said. “If not, I understand it’ll go to Judge Distler. So to that extent while I’m not changing it now, I’m going to defer ruling until I hear that argument on First Amendment.”
But the brief hearing was revealing, with the prosecutor at one point all but conceding the defense’s argument that the ankle monitor is not essential, since the prosecution was willing to trade it for a bond amount.
“He’s out on pre-trial supervision with the ankle monitor,” O’Neal said. “He lives with his grandmother, he’s in high school, he works–I think he’s trying to get another job at McDonald’s, and he can’t afford it. His grandmother is on a fixed income.”
But Libby said the ankle monitor was “part of the victim’s wishes, and we would object to removal of the GPS monitor.”
“Do you have any idea where you’re supposed to stay away from? Obviously you’re supposed to stay away from him, but do you know where you’re supposed to stay away from?” O’Neil asked Washington, who’d walked up to the podium in front of Perkins. (Washington of course refrained from making untoward comments to the judge: Had his conduct in the dean’s office mirrored his conduct in court yesterday morning, he would likely not have been in court to start with.)
“I have no idea where he lives,” Washington said. He knows he has to has to remain 5,000 feet away from the high school, and if he sees him on the street, he has to walk away, though the monitor doesn’t prevent him from seeing him randomly.
“Realistically, the GPS monitor is preventing you from going back to the high school, is that correct?”
The district is continuing to educate Washington remotely: ankle or no ankle, he’s not allowed on campus. He lives with his mother and father. Asked if they lived on a fixed income, he could not answer, but said they didn’t have a lot of money.
His mother addressed the court and said her first bill was “a hundred and some dollars.” She said she was on fixed income. He husband lost his job and just started a new one. Referring to her son, she said “he doesn’t go anywhere but to the park down the street from where we live, to work and back home,” other than the four or five times she’s had to take him to the county jail when the ankle monitor “breaks off.” She described the monitor as causing more hardship than in costs. The McDonald’s income, Washington said, is owed for rent at the house, where “it’s a struggle.”
O’Neal’s position: “The ankle monitor really isn’t serving much of a purpose in this case.” If it was intended to keep him from campus, that’s been achieved by the district anyway, he said, “to alleviate the situation between he and the alleged victim in this case. So in reality the GPS monitor isn’t really serving a purpose. All it’s doing is putting a financial hardship on a poor family.”
The judge corrected: “The GPS monitor isn’t keeping him from school. The no-contact order is keeping him from school. The GPS monitor I assume is in place to assure compliance with the specific no-contact order that’s directed to a school employee and his family.”
“In reality Mr. Washington doesn’t even know where this employee lives,” O’Neal said. “My understanding is he doesn’t live in the county. He doesn’t have an area where he’s been told to stay away from. They don’t want to tell him where this guy lives.”
O’Neal then opened his First Amendment argument: “Second, we’re kind of participating in something that’s unconstitutional. This is a free speech case. This is a case where this gentleman made a rap video–not a rap video, sorry, a rap song, he was expressing something on his own, at his house, he said something as a fictional character allegedly that may or may not do something to somebody. He never said it to the alleged victim. It was put onto a SoundCloud then it made its way to the school, then we overreacted and made this case. This is unconstitutional, we’re participating in this, and I don’t think that we should be. So I would ask that you take that in consideration as well as the reasons that we should be taking the ankle monitor off.” (The song remains on SoundCloud, attracting some 38 comments since it was posted, the majority of them a chorus of support for Washington, some of it in language rhymed to the song’s lyrics.)
Libby said the monitor serves a purpose by keeping Washington in compliance. “If Mr. Washington were to see the victim and not go away, not walk away as he is supposed to,” the prosecutor said, “then he can simply say, judge, I wasn’t there, and we’d have a he-said-she-said argument, whereas with the electronic monitor, we know exactly, we can look exactly where he was at. So I believe it does serve a purpose.” She said he was released without having to post a bond. “I understand there are some First Amendment concerns. But at this point an information has not been filed, our office is looking into it. My understanding from my email from Ms. Telfer, the case is going to be filed. We’re just not sure at this point whether it’s going to be a misdemeanor or a felony, and that decision will be soon.”
If the monitor were to be removed, she said, the state would ask for a bond instead of a GPS. But saying that made the defense’s point: the state was willing to trade the GPS for a monetary bond, which would not keep track of Washington’s whereabouts.
Washington appears to have doubled down on the song even as he seemed to be apologizing for it, in a display that couldn’t possibly help his case.
Washington appears in a video produced by YouTuber Theo Roach and uploaded on Jan. 30. “I just feel like they make me seem like I’m an enemy or like I’m a target,” Washington wearing a necklace hooked to a miniature silver gun, says, “and like I took it the wrong way, I could have handled it different, but like, I didn’t understand. I made a mistake, that shouldn’t have even got like that. I mean, to coach  I really apologize to you or whatever, if I made you feel offended or threatened you, but I mean, I love music. I mean, SSY is a music group, it’s something that my brother Dewan, he came up with it, he’s been a serious artist of this music stuff and he advised me to get into it.”
The video then features him performing the song again, threats included, as he fingers the necklace with the gun.