Prosecutor Ethics, “What The Hell Were You Thinking?” Dept: Dog-Whistling “Dixie” To The Jury

"Wait...WHAT did you just say??"

“Wait…WHAT did you just say??”

Canyon County Deputy Prosecutor Erica Kallin wanted to make the point that the defense attorney for the African American defendant, James D. Kirk, was trying to lead the jury to ignore the evidence that pointed to his guilt in his trial for lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl—making them, in effect,”look away” from the truth. How could she make that argument in a vivid way? Clarence Darrow used to use poems in his famous closing arguments; was there a memorable poem that used the phrase, “look away”?

“Eureka!” Erica thought. She found it! So she said to jury deliberating on the case:

“‘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.”

The jury convicted Kirk, on both counts; the evidence against him was indeed strong. He was sentenced to 20 years in prison.

His public defender asked the Appeals Court to overturn the convictions,arguing that the Dixie lyrics might have prejudiced the jury, and prevailed.

“This Court does not require … 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 opinion 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.”

In other words, Kallin used a racist “dog-whistle,” subliminally appealing to anti-black sentiments while ostensibly making an innocent point. The State argued that this was inadvertent on her part, the old “I’m no racist..I’m an idiot!” defense, and who knows, maybe that’s what happened. Maybe Erica is so young, color blind and historically ignorant that she had no idea that “Dixie” has been played at Klan rallies and used as the campaign theme for states rights, segregationist, white supremacy candidates since the Civil War. Maybe she didn’t recognize the cotton reference as racial. Maybe she  considered and rejected using lyrics from “Old Black Joe,” “Old Man River,” and “Massa’s In The Cold,Cold Ground” before settling on “Dixie,” thinking, “Who could be offended by that?

This is almost a more likely scenario that an Idaho prosecutor intentionally seeking to use racial bias in open court to win a case that apparently would have been hard to lose on the facts unless she did something really, really stupid. If Kellin knew what the song signifies, then her choice to refer to it is almost professionally suicidal, and a gross failure to represent her client, “the People,” competently. Is she didn’t know, and has gone through the Idaho public school system, college and law school without learning this feature of American political and cultural history….wow.

Prosecutors are deciding whether to re-try Mr. Kirk. Ms. Kellin, I hope, is going to buy a DVD of “Gone With The Wind.”

________________________

Pointer: Fark

Facts: Idaho Statesman

 

29 thoughts on “Prosecutor Ethics, “What The Hell Were You Thinking?” Dept: Dog-Whistling “Dixie” To The Jury

  1. “Ladies and gentlemen of the jury, Mr. Gonzales’ defenders have tried and tried to portray him as an innocent, desperate man in a desperate situation. But it’s clear that his robberies were committed only out of pure greed. ‘I love Frito corn chips, I love them, I do. If you have the corn chip, I take it from you.’ Just like the Frito Bandito, Mr. Gonzales stole because he wanted to steal. Not because he needed to.”

  2. Maybe she considered and rejected using lyrics from “Old Black Joe,” “Old Man River,” and “Massa’s In The Cold,Cold Ground” before settling on “Dixie,” thinking, “Who could be offended by that?“ Now you owe ME a keyboard.

  3. Doesn’t this pretty much assume that there were racial prejudices to exploit? I mean, yes, she was stupid, but couldn’t it be argued that if such prejudices existed among the jurors, the mere sight of his dark pigment would elicit the same response?

    • My thoughts too.

      I had to explain in a historical demonstration of WWI Air Combat that the planes with the crosses were on one side, the ones with the circles on the other.

      It’s as far away now as the Crimean war (the one with the Charge of the Light Brigade) was when I was born.

      And MLK’s speech “I have a dream” was as long before a 40 yr old’s birth as FDR;s “A day that will live in Infamy” was from mine.

  4. The prosecutor failed her client – the people- not because she used the words of an 19th century song but because she failed to come to understand that history and culture of the US has been so bastardized that even an appellate court has no understanding and context of the origins of the song and the history and culture of the south. And, because of its misunderstanding believes the lyrics to be racially prejudicial.

    “Maybe Erica is so young, color blind and historically ignorant that she had no idea that “Dixie” has been played at Klan rallies and used as the campaign theme for states rights, segregationist, white supremacy candidates since the Civil War. Maybe she didn’t recognize the cotton reference as racial.”

    This song was written by a northerner named Daniel Decatur Emmett and performed in New York in an 1859 minstrel show by Emmitt in blackface. The reference to cotton is geographic in nature because cotton represented the primary agricultural commodity and wealth creator of the southern states – nothing more unless one is predisposed to finding anything related to the antebellum south as racist

    Many songs have been coopted by various groups but to suggest that lyrics of Dixie are inherently racial because they are used by White supremacists is faulty logic. If a white supremacist adopted the image of Leonardo D’Vinci’s David or Venus d’ Milo or other classical work of art on their flag that would not mean that any such depiction suggests racial superiority.

    One of the most racially polarizing groups, the Congressional Black Caucus has often sung, while standing arm in arm, “We shall Overcome”. If one group believes that the words of that song mean that blacks will overwhelm whites someday does not simply make it so.

    “If Kellin knew what the song signifies, then her choice to refer to it is almost professionally suicidal, and a gross failure to represent her client, “the People,” competently. Is she didn’t know, and has gone through the Idaho public school system, college and law school without learning this feature of American political and cultural history….wow.”

    I wonder how many people are familiar with the Tariffs of Abomination that favored the manufacturing north while threatening the economy of the south. I also wonder how many know that South Carolina’s Andrew Jackson, then President, sent federal troops to put down the nascent secessionist movement. I guess not all white South Carolinians were secessionist racists. Who knew?

    I wonder how many people know that in 1844 it was several political Northern factions that wanted to disunite with the south because of the 3/5ths compromise created the perception among them that the south had too much political representation. Abolitionist William Lloyd Garrison wrote in the Liberator his advocacy of disuniting the south from the union.

    Probably very few, and what we are left with is people with little understanding of historical context and culture of the day. We only get the Cliff notes version of history in schools and even that gets watered down and changed to fit whatever narrative we want to embrace.

    But I digress.

    What the song signifies is a perceived longing to be back in the southern part of the country just like the John Denver’s song about West Virginia. What it signifies to others today is inconsequential because anyone can make any claim that anything related to the south is offensive.

    The cotton reference was not intended to be racial but has been perceived by those that want to believe that the Civil War was based solely on the issue of slavery. Yes, the abolition of slavery would have been one of the property rights taken from the southern landowner but that was not the only issue. Many of the promises and pledges made to these states to get them to join the union were being systematically violated by the fledgling federal government as its power grew.

    Here are the complete lyrics: From George Mason Library archives
    wish I was in the land of cotton,
    Old times dar am not forgotten,
    Look away! Look away! Look away! Dixie Land.
    In Dixie Land whar’ I was born in,
    Early on one frosty mornin’,
    Look away! Look away! Look away! Dixie Land.
    CHORUS:
    Den I wish I was in Dixie, Hoo-ray! Hoo-ray!
    In Dixie land, I’ll take my stand to live and die in Dixie;
    Away, away, away down south in Dixie,
    Away, away, away down south in Dixie.
    Old Missus marry Will-de-weaber,
    Willium was a gay deceaber; Look away! Look away! Look away! Dixie Land.
    But when he put his arm around ‘er
    Smiled as fierce as a forty-pounder,
    Look away! Look away! Look away! Dixie Land.
    CHORUS:
    Den I wish I was in Dixie, Hoo-ray! Hoo-ray!
    In Dixie land, I’ll take my stand to live and die in Dixie;
    Away, away, away down south in Dixie,
    Away, away, away down south in Dixie.
    His face was sharp as a butcher’s cleaver,
    But dat did not seem to greab ‘er;
    Look away! Look away! Look away! Dixie Land.
    Old Missus acted the foolish part,
    And died for a man dat broke her heart,
    Look away! Look away! Look away! Dixie Land.
    CHORUS:
    Den I wish I was in Dixie, Hoo-ray! Hoo-ray!
    In Dixie land, I’ll take my stand to live and die in Dixie;
    Away, away, away down south in Dixie,
    Away, away, away down south in Dixie.
    Now here’s a health to the next old Missus,
    And all the gals dat want to kiss us;
    Look away! Look away! Look away! Dixie Land.
    But if you want to drive ‘way sorrow,
    Come and hear dis song to-morrow,

    I challenge anyone to find anything suggestive about white racial superiority in these lyrics. There are however references to the broken promises of the federal government and its heavy hand.

    Albert Pike penned the following lyrics to the melody of Dixie. These were more demonstrative of the feelings of the southerners who felt betrayed by the Federal authorities. http://www.musicanet.org/robokopp/usa/dixie.htm

    Southrons, hear your country call you!
    Up, lest worse than death befall you!
    To arms! To arms! To arms! In Dixie!
    Lo! all the beacon fires are lighted
    Let all hearts be now united!
    To arms! To arms! To arms! In Dixie!
    Chorus:
    Advance the flag of Dixie!
    Hurrah! Hurrah!
    For Dixie’s Land we take our stand,
    And live or die for Dixie!
    |: To arms! To arms!
    And conquer peace for Dixie! 😐
    2. Hear the Northern thunders mutter!
    Northern flags in South winds flutter!
    To arms! To arms! To arms! In Dixie!
    Send them back your fierce defiance!
    Stamp upon the cursed alliance!
    To arms! To arms! To arms! In Dixie!
    Chorus:

    3. Fear no danger! Shun no labor!
    Lift up rifle, pike, and sabre!
    To arms! To arms! To arms! In Dixie!
    Shoulder pressing close to shoulder,
    Let the odds make each heart bolder!
    To arms! To arms! To arms! In Dixie!
    Chorus:

    4. How the South’s great heart rejoices
    At your cannon’s ringing voices!
    To arms! To arms! To arms! In Dixie!
    For faith betrayed and pledges broken,
    Wrongs inflicted, insults spoken,
    To arms! To arms! To arms! In Dixie!
    Chorus:
    5. Strong as lions, swift as eagles,
    Back to their kennels hunt these beagles!
    To arms! To arms! To arms! In Dixie!
    Cut the unequal bond asunder!
    Let them hence each other plunder!
    To arms! To arms! To arms! In Dixie!
    Chorus:
    6. Swear upon your country’s altar
    Never to submit or falter!
    To arms! To arms! To arms! In Dixie!
    Till the spoilers are defeated,
    Till the Lord’s work is completed,
    To arms! To arms! To arms! In Dixie!
    Chorus:

    7. Halt not till our Federation
    Secures among earth’s powers its station!
    To arms! To arms! To arms! In Dixie!
    Then at peace, and crowned with glory,
    Hear your children tell the story!
    To arms! To arms! To arms! In Dixie!
    Chorus:

    8. If the loved ones weep in sadness,
    Victory soon shall bring them gladness.
    To arms! To arms! To arms! In Dixie!
    Exultant pride soon banish sorrow;
    Smiles chase tears away tomorrow.
    To arms! To arms! To arms! In Dixie!
    Chorus:

    Rationalizing the use of benign lyrics or words as being racist because they merely originated in a given geographic area during a dark period of American history that has been boiled down to one singular issue to fit someone’s beliefs is equally unethical. If that’s the case Dixieland jazz and gospel music is racist because it originated in the Jim Crow south as well. The Irony is that the song Dixie was composed by a northerner in New York before the Civil War?

    • Great, wonderful, fascinating post..an easy Comment of the Day (well, tomorrow.) But irrelevant to the issue! It doesn’t matter what the real meaning of the song was or is. What matters is what the average person…except maybe the prosecutor—understands the song to mean. Wikipedia’s description here is literally all that matters in the context of a trial:

      During the American Civil War, “Dixie” was adopted as a de facto anthem of the Confederacy. New versions appeared at this time that more explicitly tied the song to the events of the Civil War. Since the advent of the North American Civil Rights Movement, many have identified the lyrics of the song with the iconography and ideology of the Old South. Today, “Dixie” is sometimes considered offensive, and its critics link the act of singing it to sympathy for slavery or racial separation in the American South.

      Blacks picked cotton, and the song was the Confederacy’s anthem. It was commonly sung in Minstrel shows.That’s literally all that matters, and literally what a lawyer, if competent, has to understand before referencing the song in front of a jury when a black defendant is being tried. Whether the song SHOULD have racist implications could not be less important.

      • The average person, today, would not find any racism in Dixie.

        Come to think of it, in about a quarter of a century Nazi symbols and insignia would not incite the same moral revulsion as it did in the 1950’s.

      • Thanks for the comments Jack. There were many songs attributed to the Confederacy. Bonnie Blue Flag was another. The greater point that I was making is that the connotation of the song Dixie is a recent phenomenon that is now part of popular iconography and symbolism. The true history is relegated to the dustbin because it is not as inflammatory.

        Yes blacks picked cotton as did many white sharecroppers from the early 1800’s to well into the 1940’s. Cotton, rice and sugar cane were the primary agricultural commodities in the deep south which led to growing political power in the south that the northern states resented. We have been taught that only two classes of people existed in the south – plantation owners and their slaves. The Union Army systematically destroyed the wealth creation in the south which is one of many reasons why extreme poverty exists today in that crescent shaped area known as the “Black Belt”. I assume I can use that term because it based on a geological peculiarity that drew agriculturalists and slaves to the region.

        We have been taught that whites from the south were all racists and the northerners were the great emancipators. If that is the case why did it take Lincoln three years into the war to issue Emancipation Proclamation and make it a war goal. Why did Lincoln issue it such that it did not affect slaves in states that were under Union control – Maryland being one of them, but only to those slaves in states that were rebelling? Kind of a double standard.

        The song is referring to the economic geography not the social order.
        I would be interested in your opinion as to whether the same act committed by a defense lawyer whose closing to a jury with black jurors included language such as “yessa massa” such that it could suggest that the prosecution was racist. Would not such an act -assuming it did not disrespect or create an uproar in the court – that helped gain an acquittal, irrespective of guilt or innocence, be an unethical defense strategy?

        If we used all of Wikipedia’s information it states:

        As a definite geographic location within the United States, “Dixie” is usually defined as the eleven Southern states that seceded in late 1860 and early 1861 to form the new confederation named the Confederate States of America. They are (in order of secession): South Carolina, Mississippi, Florida, Alabama, Georgia, Louisiana, Texas, Virginia, Arkansas, North Carolina, and Tennessee.

        However, the location and boundaries of “Dixie” have become, over time, more limited, vernacular and mercurial. Today, it is most often associated with those parts of the Southern United States where traditions and legacies of the Confederate experience and the Antebellum South live most strongly.

        It is that second paragraph that supports your thesis. But it is the second paragraph that also supports my assertion that our current version of history is a mere abbreviation of what actually took place and what we want it to be and not the entire story. These Cliff Note versions of American history is why we are divided on so many issues. We believe that it’s not propaganda if it is the narrative we are currently buying.

        • “My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that. What I do about slavery, and the colored race, I do because I believe it helps to save the Union; and what I forbear, I forbear because I do not believe it would help to save the Union. I shall do less whenever I shall believe what I am doing hurts the cause, and I shall do more whenever I shall believe doing more will help the cause.”
          A. Lincoln

        • Chris, I’m not disputing the fact that truth is nuanced in this matter, as it usually is. I’m pointing out that as far as being careful what you say to a jury, the nuance doesn’t matter, just like teh rest of Wikipedia’s history of Dixie doesn’t matter, if the jury can predictably only associate Dixie with racism and the Confederacy. It is very much like the Confederate flag. You can argue until the proverbial cows come home that a college student hanging such a flag on his dorm door is merely a salute to his great-great grandfather who fought for the South, that it symbolizes pride in the character traits of the men who fought behind it, etc. A black student is going to view it as an insult and a threat. If a prosecutor wore a dress with a Confederate Flag design—same result as here, and her protest that the pattern was pretty would cut no ice at all. Nor should it.

            • Well Texas was part of the Confederacy, and was a slave-holding state, so it depends on how exactly they are defining the South.

              • Texas is a western state and, while the Anglo element of the population was largely derived from the South, the admixture with the Latino and other ethnic groups have already produced a unique nationality which persists today. Texas had slavery, but it was never widespread as the plantation system never took root here. It was the “devil tariff” in large part that drove Texas to join the Confederacy. As a former republic- and a major cotton producer- Texas did and still does take the State’s Rights issue seriously.

              • If you want to find out if Texas is part of the South, just ask a Texan. We do not share a common culture, economy attitudes or generally, a geography. We’re not part of the South. Even our goofy history is different, and wildly improbable.

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