I was born in Dixie, meaning the old Confederacy, an hour away from its capitol, and probably – since the occasion was in December – on a frosty morning as well. And long ago enough that in public schools there, we read in the school history books how slaves in the south were mostly well treated, and we sang “Dixie,” though we were never told that the narrator in the song is a former slave, living in the north, who pines to return to his plantation down South.
This was all deeply woven into the local history and culture. Idaho was not much part of the Civil War. Many of its early miners were southerners, but Idaho never was a slave territory. By the time substantial number of settlers arrived slavery was legally banned,and by the time of statehood most Idahoans had come from pro-Union areas like the midwest and northeast. So what would “Dixie” mean to Idaho? What does it mean today?
Those questions matter in the Idaho Court of Appeals case of Idaho v. James D. Kirk aka Snoop. As the alias may lead you to guess, Kirk is black. In August 2012, prosecutors said, he was in Nampa when he encountered four girls (who were white) under age 18, invited them into his motel room, and sexual activity occurred. Kirk admitted to all but the last part, but physical evidence of a sexual encounter was found. Kirk was convicted of two charges (lewd conduct with a minor under 16 and sexual battery of a minor 16 to 17 years of age). His appeal centered not on the evidence but on what the prosecutor said in her rebuttal closing argument:
“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.”
Many are the ways a prosecutor could argue that the defense is trying to persuade a jury to ignore the evidence. This one invoked the unofficial song of the Confederacy, in a case involving a black man charged with having illicit sex with white girls. She had to have known the implications of doing that are loaded.
As the Court of Appeals parsed the argument: “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. In this circumstance, both the constitutional obligation to provide criminal defendants a fundamentally fair trial and the interest of maintaining public confidence in the integrity of judicial proceedings weigh against imposing a stringent standard for a defendant’s demonstration that the error was harmful.”
The case was bumped back downstairs; Kirk will be given a new trial.
Why would a prosecutor in Idaho seize on “Dixie” as a foundational metaphor in a case like this? It hardly seems like a random choice. One thought process that comes to mind goes something like this: Idahoans increasingly are identifying themselves with Dixie, with the states of the old South, not just politically but in other ways as well, and that would be a way to align the prosecution with the people in the jury. (more…)