Criminal Justice

Prosecutor's recitation of 'Dixie' leads to overturned conviction

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An Idaho appeals court has overturned the conviction of an African American defendant because the prosecutor recited lines from Dixie in her rebuttal closing argument.

The Dec. 19 decision (PDF) said defendant James Kirk’s due process and equal protection rights were violated by reference to the song, described by the court as an anthem of the Confederacy, report the Idaho Statesman and the Legal Profession Blog.

Kirk was convicted of lewd conduct with a minor and sexual battery of a minor for alleged sex with two white girls, ages 17 and 13, who were among a group of four girls who ran away from a group home. The defense had emphasized the failure of police to collect physical evidence from the hotel room where the alleged incident occurred.

The Canyon County prosecutor made the Dixie reference in an improvised rebuttal made after the defense lawyer told jurors what the prosecutor was about to say in her standard closing, a spokesperson said in early December. There was no intent to invoke race, the spokesperson told the Idaho Statesman.

Here is the portion of the prosecutor’s argument referencing the song:

“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? Look away from the two eyewitnesses. Look away from the two victims. Look away from the nurse in her medical opinion. Look away. Look away. Look away.”

The court said it needed no evidence to conclude that the song is racist in origin. “This court does not require resort to articles or history books to recognize that Dixie was an anthem of the Confederacy, an ode to the Old South, which references with praise a time and place of the most pernicious racism,” the court said. “The prosecutor’s mention of the title, Dixie, as well as the specific lyrics recited by the prosecutor, referring to ‘the land of cotton,’ expressly evoke that setting with all its racial overtones.”

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