Idaho court tosses conviction due to 'Dixie' song

By The Associated Press | Posted - Dec. 30, 2014 at 11:11 a.m.



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BOISE, Idaho (AP) — The Idaho Court of Appeals has thrown out a black man's sex crime convictions, saying the prosecutor interjected race in closing arguments by quoting lyrics from the Confederate anthem "Dixie."

All three judges agreed that Canyon County Deputy Prosecutor Erica Kallin erred in citing a song praising what the judges called pernicious racism that might have influenced the jury.

"This prosecutor may not have intended to appeal to racial bias, but a prosecutor's mental state, however innocent, does not determine the message received by the jurors or their individual responses to it," the judges wrote in the opinion. "An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection."

In April 2013 James D. Kirk, then 45, was sentenced to 20 years in prison after the jury found him guilty of committing lewd conduct against a 17-year-old girl and sexually battering a 13-year-old girl. Both teenagers are white.

Kallin began quoting "Dixie" lyrics as a response to the defense's closing arguments that focused on the perceived weaknesses in the state's case, including the failure to gather physical evidence to help prove the girls' testimony.

"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,'" Kallin said during the state's closing arguments. "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. Look away."

After Kirk was convicted, Eric Fredericksen — with the state appellate public defender's office — filed an appeal, saying that Kallin may have unfairly affected the verdict.

Idaho Deputy Attorney General Kenneth Jorgensen countered that Kallin's use of the lyrics was not a racial ploy.

Ultimately, the three judges concluded that enough doubt had been raised as to whether Kirk's conviction had been tainted.

"Nothing in the record suggests that the jurors harbored any racial prejudice or that they were actually influenced by the prosecutor's recitation of 'Dixie,' but the risk of prejudice to a defendant is magnified where the case is as sensitive as this one, involving alleged sexual molestation of minors," the judges wrote.

Canyon County spokesman Joe Decker tells the Idaho Statesman (http://bit.ly/1D48GYs) the county will retry the case if the Idaho attorney general doesn't appeal the Dec. 19 appeals court ruling.

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Information from: Idaho Statesman, http://www.idahostatesman.com

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The Associated Press

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