James D. Kirk, 46, was sentenced to 20 years in prison for sexual battery against two white victims — a 13-year-old girl and lewd conduct with a 17-year-old girl. But because the Idaho prosecuting attorney recited the lyrics to “Dixie” in her closing remarks, Kirk’s sentence was overturned by an appeals court for reasons of “racial overtones.”
The appeals court ruling quotes prosecutor Erica Kallin’s closing argument:
Ladies and gentlemen, when I was a kid we used to like to sing songs a lot. 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?
Kallin continued by mentioning the victims and the medical opinions in the case and asked the jurors if they were being asked to “look away, look away.”
Here is the audio:
The eight-page opinion from the appeals court said Kirk objected to the recitation of the lyrics, claiming it violated his constitutional rights to a fair trial and injected “the risk of racial prejudice into the case.” Appeals Court Judge Karen Lansing wrote:
The prosecutor’s mention of the title, ‘Dixie,’ as well as the specific lyrics… referring to ‘the land of cotton,’ expressly evoke that setting with all its racial overtones.
[H]owever… there was no ‘clear or obvious’ constitutional error here because the prosecutor acted with innocent intent… We agree that the racial reference here was indirect and perhaps innocently made. [But] An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection.
[T]he risk of prejudice to a defendant is magnified where the case is as sensitive as this one, involving alleged sexual molestation of minors. Although the state’s case here was a strong one, it was not so compelling that no rational juror could have voted to acquit.
And with that a convicted child molester was entitled to a new trial.