There are a lot of news stories out there that really reinforce your faith in our criminal justice system, and then there are those that make you wonder if some of our judges are totally out of their minds. The case involving James D. Kirk is one of the latter.
In 2012 Kirk was convicted of lewd conduct and sexual battery of a minor for having sexual contact at a motel with two runaway girls, ages 13 and 17, who were living in a nearby group home. The defendant is black, and the two girls are white. A three judge panel of the Idaho Court of Appeals court has ruled that the prosecutor may have racially prejudiced the case by reciting a verse from the song Dixie in her closing arguments.
“Oh I wish I was in the land of cotton. Good times not forgotten. Look away, look away, look away,” Prosecuting Attorney Erica Kallin told the jury. “And isn’t that really what you’re kind of being 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.”
According to Judge Karen L. Lansing the song was “an anthem to the Confederacy, an ode to the Old South, which references with praise a time and place of the most pernicious racism” and therefore may have primed the jury with racial prejudice and therefore violated Kirk’s constitutional rights.
If we are to follow the logic used by Lansing in her written opinion, then there are some things we too must “look away, look away, look away” from. The first is that while Dixie was indeed an anthem of a land where slavery existed, the same could be said for The Star Spangled Banner. The flag that surely occupied a positon of honor just behind her bench also flew over a land where slavery existed, but she chose to “look away” from that. It is also true that the very song Dixie is said to have been written by former slaves, that “Dixie Land” refers to a farm located in Long Island, New York owned by a man named John Dixon, and that the song was actually penned as a protest against the institution of slavery.
If we choose to “look away” from those facts, then we are left with the facts of the court case to consider. We begin by noting that the jurors were screened and chosen by both the prosecution and defense because they were deemed to be people of good moral character and of sound intelligence. We also must note that the jurors heard all of the evidence and are presumed to have followed the judge’s instructions to consider that evidence during their deliberations and to reach a verdict based on the evidence presented. We must also consider the fact that the defendant was present in the courtroom where the jury would have been able to determine his race for themselves, and that either the race of the victims was made known to the jury during the course of the trial, or that they were not even aware that the girls were white.
Once these facts are taken into consideration, then we have to conclude that if the judges’ concerns were valid that the jurors, who had previously been determined to be of good moral character and of sound intelligence, were suddenly transformed into vile racists who were willing to send an innocent black man to prison just because they had heard a verse from a song that every human being in this country knows by heart.
The lack of critical thinking skills among some members of our judiciary is frightening. What bothers me the most is not the fact that one judge reached this conclusion, but that the other two went along with her. There was a time in this country that, if you said something that stupid the people around you would tell you it was stupid just as a courtesy.