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Court tosses case after prosecutor recites pro-slavery ‘Dixie’ song at black man’s lewd conduct trial

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The Idaho Court of Appeals ruled this week that a prosecutor had inspired enough racism in jurors by citing a pro-slavery Civil War anthem to convince them to unfairly convict a black man.

While prosecuting James D. Kirk in 2013 for felony lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl, Canyon County Deputy Prosecutor Erica Kallin paraphrased the lyrics to “Dixie” to make the point that defense attorneys were hoping that jurors would ignore certain evidence, the Idaho Statesmen reported.

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“‘Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,'” Kallin told the jurors. “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.”

Kirk was eventually convicted and sentenced to 20 years in prison.

During appeal, the state Attorney General’s Office argued that Kallin had not intended to use a racial strategy in her closing remarks. But the judge ruled that her intentions did not matter because Kirk could have been unfairly convicted if even one juror was swayed.

It her decision, Appeals Court Judge Karen Lansing wrote that the appeals court did “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 prosecutor’s mention of the title, ‘Dixie,’ as well as the specific lyrics … referring to ‘the land of cotton,’ expressly evoke that setting with all its racial overtones,” Lansing said. “[T]he risk of prejudice to a defendant is magnified where the case is as sensitive as this one, involving alleged sexual molestation of minors. Although the state’s case here was a strong one, it was not so compelling that no rational juror could have voted to acquit.”

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Canyon County spokesperson Joe Decker said that prosecutors would retry Kirk if the state Attorney General’s Office did not appeal the ruling to the Idaho Supreme Court.

Listen to audio of the prosecutor’s closing remarks below.

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