James D. Kirk is scheduled to go to trial for the second time July 28 on charges he committed sex crimes against two underage girls.
Kirk, a black man, was convicted in April 2013 of felony lewd conduct with a white 17-year-old girl and sexual battery of a white 13-year-old girl, but the Idaho Court of Appeals threw out the conviction because Erica Kallin, the prosecutor in the case, recited the opening bars of “Dixie,” the Confederate anthem in the Civil War, during closing arguments.
“Oh I wish I was in the land of cotton. Good times not forgotten. Look away. Look away. Look away,” Kallin said. “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.”
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The Court of Appeals ruled that Kallin’s use of the song’s lyrics might have stirred up enough racism among the all-white jury to influence the verdict.
Kallin didn't mean to invoke race, Canyon County spokesman Joe Decker said in early December. Instead, she was improvising her closing because Kirk's attorney, Aaron Bazzoli, had already predicted to jurors what she was about to say in her standard closing.
That's beside the point, Appeals Court Judge Karen Lansing wrote.
“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,” Lansing wrote in her opinion, which fellow Judges David Gratton and John Melanson agreed with. “An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection.”
The case was sent back to Canyon County for a new prosecution after Appeals Court judges sided with the State Appellate Public Defender’s Office in suggesting the use of “Dixie” lyrics tainted the verdict against Kirk, even if it only swayed one juror.
“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,” Lansing wrote. “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.”
This time, Kallin will not prosecute Kirk’s case, Canyon County spokesman Joe Decker said in an email. Prosecutor Bryan Taylor, Kallin’s boss, has taken on those duties. The Canyon County Public Defender’s office is handling Kirk’s defense, Decker said.