‘LOOK AWAY. LOOK AWAY. LOOK AWAY.’ A NO NO!

The Idaho Court of Appeals overturned the conviction of a black man in a sexual abuse case because the prosecutor quoted lyrics from ‘Dixie’, thereby playing to the racial biases jurors may have held

BarkGrowlBite | January 3, 2015

In April 2013, James D. Kirk, then 45, a black man, was sentenced to 20 years in prison for the sexual abuse of two white girls. Kirk was found guilty of lewd conduct against a 17-year-old girl and sexual battery of a 13-year-old girl.

In rebuttal to the defense’s closing arguments that the state had no physical evidence to back up the stories of the two victims, Canyon County Deputy Prosecutor Erica Kallin quoted lyrics from ‘Dixie’, the anthem of the Confederacy:

“I always think of this one song. Some people know it. It's the Dixie song. Right? 'Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away. And isn't that really what you've kind of been asked to do? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse and her medical opinion. Look away. Look away. Look away.”

On December 19, a three-judge panel of the Idaho Court of Appeals overturned Kirk's conviction, ruling unanimously that quoting from Dixie had inadvertently introduced ‘pernicious racism’ into the trial:

“This prosecutor may not have intended to appeal to racial bias, but a prosecutor's mental state, however innocent, does not determine the message received by the jurors or their individual responses to it.

An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection.

Nothing in the record suggests that the jurors harbored any racial prejudice or that they were actually influenced by the prosecutor's recitation of 'Dixie,' but the risk of prejudice to a defendant is magnified where the case is as sensitive as this one, involving alleged sexual molestation of minors.”

In my opinion, the three judges took leave of their senses. Nothing in that song suggests any racism. Furthermore, unlike the Confederate flag, which is recognized as a symbol of racism, I’ll bet that most of the jurors, if not all of them, don’t even know that ‘Dixie’ was the anthem of the Confederacy. And that ain’t whistling Dixie.