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.”
Facts: Idaho Statesman