An Idaho man serving time for molesting two teenagers had his conviction thrown out after a three-judge panel of the Idaho Court of Appeals unanimously ruled that the prosecutor’s paraphrasing of “Dixie” in her closing argument was racially inflammatory.
Read the opinion here. In 2013, James Kirk was convicted of molesting a 13-year-old girl and a 17-year-old girl at a hotel in Nampa, a suburb of Boise. The case was based mainly on the strength of testimony from the girls’ two friends, as well as a nurse who said a physical examination of the 13-year-old revealed evidence consistent with sexual intercourse.? He was sentenced to eight to 20 years in state prison. Kirk is black; all four girls in the room were white.
Earlier this month, Kirk appealed, contending that Canyon County Deputy Prosecutor Erica Kallin prejudiced the jury against him by quoting “Dixie” during her closing argument. According to Kirk’s trial attorney, Aaron Bazzoli, Kallin was forced to change tactics when Bazzoli told jurors that Kallin was going to refer to the defense case as “smoke and mirrors.” However, what Kallin ended up saying is so shocking that it has to be reproduced in full to be believed.
“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.”
Eric Fredericksen, who argued Kirk’s case on behalf of the state public defender’s office, contended that Kallin’s use of the song improperly injected race into the trial, and that the conviction would have been tainted if even one juror had been prejudiced. Canyon County spokesman Joe Decker said that Kallin was “mortified” by any suggestion that her use of the lyrics was racially motivated. Deputy state attorney general Kenneth Jorgensen argued that even though “Dixie” was associated with the Confederacy, it was “less than clear” that it could be intended to stir up racial prejudice.
The Court of Appeals panel sided with Kirk. Judge Karen Lansing, writing for the panel, wrote that even if Kallin hadn’t intended to stir up racial bias, a prosecutor’s intention “does not determine the message received by the jurors or their individual responses to it.”? Unintentional or not, Lansing felt that the lyrics chosen by Kallin, as well as the fact she mentioned the song’s title, brought back memories of “the most pernicious racism.”Although the panel found no evidence on the record that the jurors were actually influenced by Kallin’s actions, it was very concerned about the appearance of prejudice given that this case involved sexual molestation of minors.
The panel concluded that while the prosecution’s case was strong, “it was not so compelling that no rational juror could have voted to acquit.” However, I would have thrown out the conviction even if the evidence against Kirk had been overwhelming. It’s hard to believe that Kallin was completely in the dark about the racial overtones of this song. Even if she hadn’t intended to blow a dog whistle, she was being incredibly tone-deaf. It doesn’t say a lot about the hiring standards for prosecutors in Idaho if this was the best she could come up with at the last minute. Moreover, it was completely unnecessary. She could have made her point without references to “the land of cotton.”
I find myself thinking back to the Danziger Bridge case. If you’ll remember, the four officers involved in the shooting had their guilty verdicts thrown out when it emerged that Sal Perricone, the top trial attorney in the New Orleans U. S. Attorney’s office, had anonymously posted comments on NOLA.com attacking the defendants and the New Orleans Police Department in general. Perricone and Justice Department official Karla Dobinski also anonymously made comments on trial testimony while the trial was underway. In essence, they engaged in high-tech witness tampering and jury tampering. You simply cannot tolerate that in a criminal trial, no matter how overwhelming the evidence may be. For that reason, the only option was to order a new trial. This is no different.
Canyon County officials say that unless state attorney general Lawrence Wasden appeals the appellate decision, they will retry Kirk. If I were county prosecutor Bryan Taylor, I’d take the cost of the retrial out of Kallin’s paycheck.
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Darrell Lucus, also known as Christian Dem in NC on Daily Kos, is a radical-lefty Jesus-lover who has been blogging for change for a decade. Follow him on Twitter @DarrellLucus or connect with him on Facebook.
