Thursday, April 9, 2015

A Post-Racial Legal System?

Today is the 150th Anniversary of the surrender of the Confederate Army of Northern Virginia to the Union Army of the Potomac in the American Civil War.  So it seems that a Civil War themed post is appropriate.

Millenial students are fond of espousing this country's ascension to a state of post-racial relations. Certainly recent events involving fraternity chants and disputes over the interactions of white police officers and black suspects have elevated race back into the social justice consciousness.  But surely these issues must have been scrubbed from the interior of the halls of justice?  It is there that highly educated lawyers and judges interact with the single-minded ideals of the pursuit of justice.

Then how does this happen? The Idaho Appeals Court overturned the conviction of a black defendant on charges of sexual assault of a minor after the prosecutor quoted lyrics from the song "Dixie" in her closing argument.  Written as  minstrel song before the Civil War, "Dixie" became the unofficial anthem of the Confederate States during the war and has been associated ever since as a glorification of the society that enslaved African Americans.  According to the Idaho Statesman, Prosecutor Erica Kallin's address to the jury included the following:

" '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."

Click here to listen to an audio clip of this section of the closing argument.

The Appeals Court took judicial notice of the history and connotations of  "Dixie":

This Court does not require resort to 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. 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.

Because of the circumstances - a black defendant with charges of a sexual nature - the Appeals Court erred on the side of caution, setting the bar low for the defendant to show that the prosecutor's comments constituted reversible error, stating:

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. Although the State’s case here was a strong one, it was not so compelling that no rational juror could have voted to acquit.

"Dixie" (in case you are not familiar with the song):

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