It’s not uncommon for a prosecutor to metaphorically wrap herself in the flag, but the CSA Battle Flag is a bad choice. In Idaho v. Kirk, No. 41236 (Dec. 19, 2014), the Idaho Court of Appeals found that the state’s lawyer committed prosecutorial misconduct in her closing argument by quoting Dixie, a song the court called “an anthem of the Confederacy.” Said the prosecutor:
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.
See id. at p. 3. The state argued that “the prosecutor acted with innocent intent, presenting ‘simply a personal story of singing in her youth’ to make a legitimate point that Kirk’s closing argument asked the jury to ‘look away’ from the prosecution’s evidence.” The problem, however, was that Kirk was an African-American man charged with committing sex crimes against two white girls:
While there may be other cases where a prosecutorial remark with racial overtones would be harmless error, given the nature of this particular case, and considering the totality of the evidence and trial proceedings, we conclude that Kirk has demonstrated a reasonable possibility (or likelihood) that the error affected the outcome of the trial. Kirk is therefore entitled to a new trial.