An aspiring rapper, who insists he was only sketching out lyrics when he wrote what authorities call a note threatening a Virginia Tech-like "murderous rampage," went to trial Tuesday in a case that could hinge on a jury's interpretation of constitutional free speech.
Olutosin Oduwole has downplayed as innocent lyrical musings the note found in July 2007 in his car on the Southern Illinois University campus he attended in Edwardsville. Prosecutors counter the writings — together with Oduwole's possession of a handgun and online firearms purchases — represented something potentially sinister just months after a student gunned down 32 people and injured 25 before killing himself at Virginia Tech.
Oduwole has called the languishing case frivolous and a "misunderstanding" blown out of proportion. Prosecutors have refused to abandon the felony count of attempting to make a terrorist threat, setting the stage for jury selection in the trial that began Tuesday.
"The evidence is still there and hasn't disappeared," Tom Gibbons, Madison County's top prosecutor, said on the eve of the trial long delayed by appeals and other legal disputes. "It's not a case where the duration of time has been an impediment to our ability to prove the case."
Lawyers for Oduwole, who has pleaded not guilty and faces up to 15 years in prison if convicted of the threat-related count, did not return telephone messages left this week by The Associated Press. But attorney Jeffrey Urdangen has in the past called Oduwole's words simply lyrics similar to Johnny Cash singing about shooting a man in Reno, just to watch him die.
Oduwole, 26, was a student at the 13,000-student campus when campus police found a note in his car while impounding the disabled vehicle. Investigators said the note demanded payment to a PayPal account, threatening "if this account doesn't 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!"
The note did not make any direct reference to targeting the campus, police said. But prosecutors have said the timing of the note's discovery, ammunition in Oduwole's car and a loaded handgun in his on-campus apartment on the heels of the Virginia Tech rampage could not be overlooked.
About a week earlier, a gun dealer notified federal authorities that Oduwole seemed overly anxious to get weapons he had ordered online, according to an affidavit filed in court by a police detective.
"I believe in God, and I believe God knows I have no intentions of ill will," Oduwole, now living with his father in New Jersey, has said.
Urdangen has argued there never was a threat because there's no evidence the words found by police ever were shared.
"This is not a hard case. This is not an ivory tower legal abstract," Urdangen told Madison County Circuit Judge Richard Tognarelli in November 2009, bidding to have the case tossed. "You cannot criminalize free speech."
Tognarelli later ruled a jury should decide the issue, noting that "it is the defendant, alone, who maintains that the note is rap lyrics."
"I still contend there was not a note that was written," Oduwole has said. "Rap lyrics are not a note."
Violence-tinged rap lyrics have gotten others in trouble before. In Florida, rapper Antavio Johnson — apparently frustrated with local police friends say harassed him years earlier as a teenager — was prosecuted after his song "Kill Me a Cop" was posted on the Myspace page of an unofficial record label, calling officers by name and threatening to shoot them. Johnson later pleaded no contest to two threat-related counts and got two years in prison.
Free-speech advocates argued at the time that Johnson's lyrics were merely artistic expressions and not a credible threat, much as Oduwole's attorneys have insisted. On Tuesday, a free-speech scholar questioned whether Oduwole's writings constituted a true threat, given their apparent absence of a clear target.
"I'm a little puzzled by (Oduwole's being prosecuted), actually," said David Hudson Jr., a lawyer and scholar with the First Amendment Center, a Nashville, Tenn.-based free speech education organization that's part of the Freedom Forum. "I think prosecutors have a tough little road there, though maybe there are some other factors I'm not aware of."
Oduwole, who has gone by the name Tosin Potion on the Internet, used his online content in hopes of jump-starting his rap career, even selling T-shirts under the logo "This Is not A Joke!" — a slogan Oduwole has insisted was to show people that his music should be taken seriously.
"There is nobody here advocating for violence," Oduwole has said.