Whistling Dixie not the smartest trial strategy, nor racially sensitive, nor consistent with due process and equal protection

Prosecutors say the darnedest things in closing arguments, and sometimes those things amount to reversible error.1 Telling the jury in a murder case: “I didn’t go to law school for four years at night to put innocent men in the penitentiary . . . [t]his man is guilty,” was held improper.2 In another case, it was wrong for the prosecutor to characterize a defendant as an ‘‘animal,” “even where that characterization is based upon the evidence.”3

On the other hand, it was acceptable for a prosecutor to call the defendant’s conduct during the offense “pure evil.” Although a prosecutor may not characterize the defendant as an “evil” person or cast the jury’s decision as a choice between “good and evil,” the prosecutor’s statements in that case referred to specific actions by the defendant during the offense and argued that the facts proved the defendant’s guilt.4 But a prosecutor in another case committed plain error by calling the defendant a “liar” and by saying that he wished the jury had a “built-in-shockproof B.S. detector” when the defendant’s testimony was not really inconsistent with that of other witnesses; thus, the argument had “no basis in the record.”5

Reviewing courts in Illinois have wisely paid close attention to prosecutors’ attempts to inject racial issues in closing arguments. Where the prosecutor stated the (white) defendants went “to the Negro bars [and] I think . . . that a person who frequents those kind of places is going to be a person different than reasonable persons . . . [and] is a kind of person who would carry a pistol into those places, and if there was trouble the first thing he’d go for would be his pistol,” our Supreme Court found the comments improper, albeit not reversible error. “[A]ppeals to racial prejudice, whether open or oblique, discredit our justice and are to be condemned,” the Court held.6 More recently, the Fifth District Appellate Court noted repeated condemnation of prosecutors’ attempts to introduce race into closing arguments. Plain error was held where a consistent theme of the prosecutor’s argument in both opening and closing statements to the jury was the “culture of the black community,” where people were raised to believe that the police and prosecutors are the “enemy” and the biggest sin one could commit was to be a snitch. These arguments, the Court found, arbitrarily injected race into the jury’s deliberations and had no bearing on the credibility of the State’s witnesses. The comments were seen as “naked prejudice” with no basis in the evidence.7

Thus, one can only shake one’s head to wonder what century a prosecutor thought she was living in when, in a prosecution of a black man accused of lewdly assaulting two white teenagers, Canyon County (Idaho) Deputy Prosecutor Erica Kallin decided to forgo the usual prosecutorial shibboleths of “red herring” and “smoke and mirrors” to paraphrase lyrics from that anthem of the antebellum South, “Dixie.” In her final argument to the jury, she argued:

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 and her medical opinion. Look away. Look away. Look away.8

Her comments were challenged in the defendant’s appeal as a denial of due process and equal protection.9

As a parenthetical, it must be noted that passions invoked by the use of the song “Dixie” have been discussed in a number of published decisions in both criminal and civil cases.10 For example, a white supervisor’s whistling of “Dixie” at the workplace was one of the complaints alleged by an African-American plaintiff in at least one civil rights lawsuit.11 As the Court in the Idaho appeal observed:

[T]his Court does not require resort to articles or history books to recognize that ‘Dixie” was an anthem for 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.12

While allowing that prosecutor Kallin’s reference might well have been made innocently and not intended to appeal to racial bias, the Court reasoned: “[T]he message received by the jurors or their individual responses to it” were the real issues. “An invocation of race by a prosecutor, even if subtle and oblique, may be violative of due process or equal protection,” the Court recognized.13

Since the defendant’s trial attorney did not object to Ms. Kallin’s comment, to prevail on appeal, he had to convince the Appellate Court that Kallin’s error was plain and not harmless. But, ultimately, those obstacles did not constrain the Court. “Like racial discrimination in the selection of jurors or grand jurors, the injection of racial considerations in closing arguments ‘casts doubt on the integrity of the judicial process,’ and ‘impairs the confidence of the public in the administration of justice,’” the Court found.14

There was nothing in the record to suggest the Idaho jurors were in fact racially prejudiced, or that they were in fact influenced by the reference to “Dixie.” And the State’s case “was a strong one.” But the Court concluded that given the circumstances of the case (where no physical evidence corroborated the sensitive sexual allegations), “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,” outweighed a focus on the strength of the State’s evidence. There was a reasonable possibility that the error affected the outcome of the trial, so the conviction was reversed and the case was remanded for a new trial.15

So what are the lessons to be learned here? Well, first, this is 2015, not 1860. It’s way past the time to get used to a more diverse world and respect the sensitivities of all people. Second, there is such a thing as being too clever. Sometimes what one might think to be clever is, in actuality, just plain rude. From the perspective of trial strategy, closing argument is not the time to test the limits of good taste. ■

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This article was originally published in the Kane County Bar Association’s Bar Briefs April 2015 Diversity issue.

Since 1977, Paul J. Glaser has been an attorney with the Office of the State Appellate Defender in Elgin, where he has served as principal attorney in more than 965 cases, and appeared before all five Appellate Districts, the Illinois Supreme Court, the United States District Court, and the Seventh Circuit Court of Appeals. He is currently the Assistant Deputy Defender of the Elgin Office. He is also a member of the Bar Briefs Editorial Board and a member of the KCBA Criminal Law and Diversity Committees.

 

1. A prosecutor’s improper closing argument can be found to be reversible error when it constituted a material factor in the conviction or resulted in substantial prejudice to the defendant. People v. Lucas, 132 Ill.2d 399, 437 (1989).

2. People v. Caballero, 126 Ill.2d 248, 272 (1989)

3. People v. Johnson, 119 Ill.2d 119, 139 (1987)

4. People v. Nicholas, 218 Ill.App.3d 104, 121-122 (2005)

5. People v. Strange, 125 Ill.App.3d 43, 46 (1st Dist. 1984)

6. People v. Dukett, 56 Ill.2d 432, 443 (1974); see also, People v. Turner, 52 Ill.App.3d 738 (4th Dist. 1977) (plain error when prosecutor said that a black witness was “going to have a good time watching two black girls beat up whitey”); and People v. Johnson, 114 Ill.2d 170, 199 (1986) (prosecutor’s reference to defendant as “that black man” was “unnecessary and potentially offensive” but not reversible error).

7. People v. Marshall, 2013 IL App (5th) 110430 (it is noteworthy –and admirable– that the State filed a confession of error in the appeal)

8. State v. Kirk, 2014 WL 7201726 (Dec. 19, 2014), *2

9. 2014 WL 7201726, *2

10. A more complete telling of the history of the song “Dixie” than the author will attempt here can be found in Tate v. Board of Education of the Jonesboro, Arkansas, Special School District, 453 F.2d 975, 980-981 (8th Cir. 1972).

11. Holt v. Roadway Package Sys., Inc., 506 F. Supp. 2d 194, 203 (W.D.N.Y. 2007)

12. 2014 WL 7201726, *3

13. 2014 WL 7201726, *3

14. 2014 WL 7201726, *5, quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)

15. 2014 WL 7201726, *6