Of Lynchings, Grand Jury Secrecy, and the Rot of Racism in the United States

By Eric Segall

On July 25, 1946, about sixty miles east of Atlanta, two African-American couples, Roger and Dorothy Malcom and George and Mae Murray Dorsey, were dragged from their car at gunpoint, tied to a tree, and shot approximately 60 times. The attack came to be known as the Moore’s Ford lynchings. 

Despite the police interviewing almost 3000 witnesses, and a grand jury investigation that lasted for 16 days with over 100 witnesses, no one was ever arrested for these terrible and gruesome murders, which took place in public. Some people believe this heinous crime was the last mass lynching in our country.

Historian Anthony Pitch, who had already written one book on the subject, spent the last six years of his life trying to unseal the grand jury materials relevant to the lynchings. He believed that this racist crime and the likely coverup of those who committed it was a major event in American history as well a tragic saga of race in America.

He prevailed in front of both the trial court and a three-judge panel of the United States Court of Appeals for the Eleventh Circuit. After the appeals court decided to hear the case en banc, however, Pitch passed away.  Nevertheless, his widow kept the lawsuit alive. Then, on March 27 of this year, by a vote of  8-4, the full Eleventh Circuit reversed the panel decision and said the materials must remain sealed. Mr. Pitch's widow has 90 days from the date of the decision to ask the Supreme Court to hear the case.

As a general rule, of course, grand jury records are and should be sealed forever. This practice protects witnesses and motivates them to step forward, helps police keep matters under wraps while they investigate crimes, and protects the innocent from hurtful disclosures about their private lives, among other benefits deriving from this long-recognized need for secrecy.

Like most important rules, however, the requirement of grand jury secrecy is not absolute. The relevant law is Rule 6(e) of the Federal Rules of Criminal Procedure. The Rule codifies grand jury secrecy and contains a number of exceptions, none of which apply to this case. However, both the trial judge and the three-judge panel held that federal district court judges have inherent discretionary authority in exceptional circumstances to order the release of grand jury materials even if none of the exceptions in 6(e) apply. The narrow exception carved out by these courts was for grand jury proceedings occurring long ago and related to events of great historical significance. Both the trial judge and the appellate panel had more than a reasonable basis for that conclusion because the Eleventh Circuit so held in a prior case. To reach the conclusion that the Moore's Ford lynching materials could not ever be released, the en banc court had to reverse its own precedent.

The precise legal issues in Pitch v. United States were whether there are exceptions to the general rule of grand jury secrecy other than those listed in Rule 6(e), and if so, did any such exception apply to the Moore's Ford lynching investigation. The en banc court didn't reach the second question because it answered the first one negatively. Four of the twelve judges strongly dissented.

I want to discuss the second question first. If district courts do have inherent discretionary authority to release grand jury materials relating to old cases of great historical significance, there can be little doubt that the Moore's Ford lynchings would meet that criterion. Anyone who could possibly be incriminated by such materials is likely long dead. The lynchings remain unsolved, and the entire episode has long been treated by civil rights leaders as a terrible example of American racism at work. As the panel held, the "Moore's Ford Lynching is clearly an event of exceptional historical significance...because it is closely tied to the national civil rights movement....There has been, and continues to be, national media attention and widespread public interest in the murders."

It could be argued that the relatives or children or grandchildren of some of the people involved in the lynchings could still be alive and if material came out that put their relatives in disrepute it would be difficult for them to rebut those materials. This concern is not frivolous but it is speculative, and while it may counsel against disclosure in the normal case, here the public interest in an important historical event that still triggers justifiable anger and concern should be more important, as both the district court and the panel opinion concluded.

So the real question is whether Rule 6(e) took away the common law discretion district courts enjoyed to release grand jury materials in very narrow circumstances. Here is where the en banc majority and dissenting opinions descended into a foolish and ultra-formalistic 104-page debate about statutory interpretation canons, anti-canons, and cliches. Here are just three of a dozen or so examples:

Majority: “Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” Therefore, there are no exceptions to grand jury secrecy other than those listed in the Rule.

Dissent: The rules do not "explicitly" curtail the discretion district courts have traditionally had to release grand jury materials. Absent such "explicit" language, and given the the drafters of the rules were aware of that discretion, the statute should not be read to take it away.

Dissent: Rule 6(e) lists the people to whom it directs a rule of secrecy and district court judges are not included on that list. Therefore, such judges are not bound by the rule but by the general common law of grand jury secrecy which contained narrow exceptions.

Majority: Rule 6(e) lists only those people who normally are privy to grand jury proceedings (like the jurors, prosecutors, etc.,) and therefore it is not surprising district court judges aren't included in the rule, but that doesn't mean there are exceptions in the rule other than the ones listed.
Dissent: In 2012, the Advisory Committee on the rules rejected a suggestion by the Attorney General that an exception be added for materials relating to important historical events because, according to the notes, when those rare occasions had presented themselves to federal trial judges, they had resolved them according to their inherent discretionary authority (and sometimes in favor of disclosure).

Majority: This note is not important because it came 43 years after the rules were enacted, and, in any event, was made only by a subcommittee of those eligible to change the rules.

These legalistic arguments go back and forth, and forth and back, and any objective person reading them would decide they amount to a draw, which may explain why there is currently a circuit split on the issue of whether Rule 6(e) is exclusive or not.

The bottom line, of course, and what more likely explains why different judges are reaching different results on the issue is that at bottom the policy question is indeed somewhat difficult. On one hand, giving district court judges the discretion to release grand jury materials relating to important historical events to interested journalists raises all kinds of issues: how important does the event have to be? Who is a journalist? And how old does the event have to be? There will be no clear answers to these questions.

On the other hand, judges did exercise this discretion for many years and there was not a firestorm of abuses. Additionally, where grand jury materials can provide important perspectives on major historical events, the American people have a strong interest in disclosure. And if trial judges do abuse their discretion, appellate judges can correct their mistakes before harm is done.

At the end of the day, recent events in Georgia have crystalized for me where I stand on this issue. 

On February 23 of this year, an African-American male, Amhaud Arbery, was jogging through a neighborhood in Glynn County, Georgia, when he was shot and killed by two white men--a retired police officer and his son. After the local police were called to the scene, they let the two men go. Later that day, Amhaud's mother was told by a police investigator that her son had been killed while involved in a burglary, a complete fabrication. 

According to the New York Times, "over the years, Glynn County police officers have been accused of covering up allegations of misconduct, tampering with a crime scene, interfering in an investigation of a police shooting and retaliating against fellow officers who cooperated with an outside investigation."

Two months went by before a person released a partial video of the murder leading to the arrest of the two men who shot Arbery (the person who shot the video has also been arrested). All three men deserve a presumption of innocence. Yet, it is also true and tragic that African-Americans are still being shot all over the country at rates far too high for any civilized society. But for the video, it is likely this case would have ended up the exact same way as the Moore's Ford lynchings--African-Americans murdered, and no justice.

Grand jury secrecy is extremely important but it need not be absolute for the system to work. And, although we have made some progress since 1946, our criminal justice system is still notoriously racist. Although hard cases sometimes make bad law, it is also true that hard cases can provide helpful perspectives. The American people should know much more about how four people could be lynched in public with crowds of witnesses, and yet the authorities didn't arrest a single person. That was true in 1946, and it is still true today, especially when the rot of racism still very much exists in the United States of America.