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

Dixie

I will introduce this fascinating Comment of the Day by one of the blog’s masters of the long form comment, Chris Marschner,  by saying that I think it is only tangentially related to the post, though he would disagree. Chris is writing about the history of “Dixie” and why it should not be associated with racism. Whether I agree with that analysis or not, the fact is that the public does overwhelmingly associate the song with a longing for the simplicities of the Old South, when the darkies were singing in the cotton fields and those Northern folks weren’t sticking in their noses where they don’t belong. This is the basis of an Idaho court’s decision to overturn the conviction of a black defendant after the prosecutor gratuitously and needlessly quoted the lyrics of the song in her closing argument.  That decision was correct, because the issue is whether the comment could reasonably have been an appeal, or seemed like an appeal, or have had the effect of an appeal, to racial bias. I don’t think that conclusion is arguable.

Here is Chris’s Comment of the Day on the post, Prosecutor Ethics, “What The Hell Were You Thinking?” Dept: Dog-Whistling “Dixie” To The Jury:

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. Continue reading

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. Continue reading