Prosecutor's use of "Dixie" song spurs appeal

AP News
|
Posted: Dec 05, 2014 6:08 PM

BOISE, Idaho (AP) — Defense attorneys have filed an appeal claiming a man convicted of lewd conduct in Idaho should get a new trial because they say a prosecutor introduced racism into the case by quoting lyrics from the song "Dixie" in her closing argument.

The song, originally penned in 1859 for a minstrel show and later popularized as the Confederate anthem during the Civil War, longingly recalls the antebellum South.

Defense attorneys for James D. Kirk said the use of the song during the trial of the black man accused of assaulting white teenagers turned the trial into a racial matter, whether or not that was the intention of the prosecutor.

The defense lawyers made the arguments last week during a hearing before the Idaho Court of Appeals, the Idaho Statesman (http://bit.ly/1tRNnDy) reported Friday.

Attorneys for the state countered that while the song's association with Southern plantation life is fairly clear, the prosecutor's use of the lyrics wasn't a racial ploy.

Kirk was sentenced to up to 20 years in prison in April 2013 after the jury found him guilty of committing lewd conduct against a 17-year-old girl and sexually battering a 13-year-old girl. During her closing arguments, Canyon County Deputy Prosecutor Erica Kallin paraphrased the 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,'" Kallin said. "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."

Canyon County spokesman Joe Decker said Kallin declined to comment, but added that she wasn't trying to stir up racism against Kirk.

"In fact, she's absolutely mortified by the allegation that she did," Decker said.

Decker said Kallin originally planned to use more common metaphors such as "smoke and mirrors" and "red herring" during her closing argument but changed her mind after Kirk's defense attorney used the same metaphors.

Kallin had recently heard another prosecutor use the "Dixie" lyrics during a closing argument in a different county, Decker said.

Kenneth Jorgensen from the Idaho attorney general's office argued on behalf of Kallin during the appellate hearing. He said it's incorrect to assume anyone who quotes the song has racial motivations.

"It's pretty common knowledge that this song is associated with the South," Jorgensen said. "To then interpret that as a call to racism, a call to consider the defendant's race in relation to the case, I think, is where this ultimately breaks down."

The appellate judges didn't say when they would issue a ruling in the case.