[Vision2020] Idaho appeals court overturns conviction of black man . . .

[Tom Hansen]

Courtesy of the Idaho Statesman at:

http://www.idahostatesman.com/welcome_page/?shf=/2014/12/30/3565435_conviction-overturned-over-dixie.html%3fsp=/99/1687/&ihp=1

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Idaho appeals court overturns conviction of black man in case where prosecutor recited Confederate anthem
Canyon County won't drop charges against the black defendant, an official says.

Read more here: http://www.idahostatesman.com/2014/12/30/3565435/conviction-overturned-over-dixie.html?sp=/99/1687/&ihp=1#storylink=cpy
Canyon County Deputy Prosecutor Erica Kallin might have stirred up enough racism among jurors to influence their verdict when she recited some of the opening lines of "Dixie" - the Confederate anthem - in her closing argument against James D. Kirk, the Idaho Court of Appeals has found. 

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 told 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."

Read more here: http://www.idahostatesman.com/2014/12/30/3565435/conviction-overturned-over-dixie.html?sp=/99/1687/&ihp=1#storylink=cpy
THE CASE
In April 2013, at the end of Kirk's trial, Kallin paraphrased from "Dixie" as a warning for jurors not to be distracted from the evidence against Kirk, a black man accused of lewd conduct with a 17-year-old girl and sexual battery of a 13-year-old girl. 

" '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."

A jury convicted Kirk, then 45, of both counts. A district judge sentenced him to 20 years in prison. 

Eric Fredericksen of the State Appellate Public Defender's Office asked the Appeals Court to overturn the convictions, saying Kallin might have unfairly affected the verdict, even if only one juror was prejudiced. Kenneth Jorgensen of the Idaho Attorney General's Office argued that Kallin's use of the lyrics was not a racial ploy.

The Appeals Court sided with Kirk.

"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."

INTENT VS. PERCEPTION
Ultimately, Lansing and her fellow judges found that enough doubt had been raised as to whether the convictions that Kallin secured against Kirk were 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," Lansing wrote. "Although the state's case here was a strong one, it was not so compelling that no rational juror could have voted to acquit."

The Appeals Court ordered Kirk's conviction overturned and sent the case back to Canyon County for another prosecution. Decker said the county is waiting to see whether the Attorney General's Office will appeal the opinion to the Idaho Supreme Court. 

Jorgensen said he's still reviewing the opinion and has until Jan. 9 to file an appeal. 

If Jorgensen doesn't appeal, the county will reset the case and prosecute it anew, Decker said.

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Prosecutor quotes from "Dixie"

https://soundcloud.com/idaho-statesman/prosecutor-quotes-from-dixie

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The Court's Decision

http://media.idahostatesman.com/smedia/2014/12/29/18/10/q9muM.So.36.pdf#storylink=relast

Read more here: http://www.idahostatesman.com/2014/12/30/3565435/conviction-overturned-over-dixie.html?sp=/99/1687/&ihp=1#storylink=cpy-------------------------------------
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Seeya 'round town, Moscow, because . . .

"Moscow Cares"
http://www.MoscowCares.com
  
Tom Hansen
Moscow, Idaho

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