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Wednesday, December 6, 2023
Courthouse News Service
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En Banc 11th Circuit Hears Bid to Release Lynching Records

Taking up a fight for records about a 1946 lynching in Georgia, a full 12-member panel of the 11th Circuit heard arguments Tuesday over whether federal judges can order grand jury records unsealed in old cases with historical significance.

ATLANTA (CN) — Taking up a fight for records about a 1946 lynching in Georgia, a full 12-member panel of the 11th Circuit heard arguments Tuesday over whether federal judges can order grand jury records unsealed in old cases with historical significance.

Although Justice Department attorney Brad Hinshelwood urged the en banc court to uphold grand jury secrecy rules and reverse a ruling permitting the release of records in the 1946 mob lynching of two black couples in rural Georgia, he conceded that the records may be subject to release under the Civil Rights Cold Case Records Collection Act passed last year.

The FBI reportedly spent months investigating the deaths of Roger and Dorothy Malcom and George and Mae Murray Dorsey after they were stopped by a white mob as they drove along a road 50 miles outside of Atlanta. The mob, which included an estimated 30 to 100 people, dragged them from their vehicle, tied them to a tree, and shot them.

Although more than 100 people reportedly testified before a grand jury over the course of 16 days in late 1946, no one was indicted for the crime and the case remains unsolved.

Historian Anthony Pitch, who wrote a book about the lynching titled "The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town," discovered in 2016 that the transcripts from the grand jury proceedings were stored by the National Archives.

In 2017, a federal judge granted Pitch's request to unseal grand jury transcripts in the Moore's Ford Bridge lynching case, widely considered the last mass lynching in American history. A three-judge panel of the 11th Circuit upheld the decision in February after the Department of Justice appealed, arguing that grand jury proceedings are secret and must remain sealed.

The Atlanta-based appeals court voted in June to vacate its decision and rehear the case en banc, determining that another round of oral arguments is necessary to decide whether grand jury records in the Moore's Ford Bridge case can be released. After his death in June at the age of 80, Pitch was replaced in the case by his widow Marion Pitch.

The Civil Rights Cold Case Records Collection Act, which was signed into law by President Donald Trump in January, allows for the review and release of records of criminal investigations relating to alleged federal civil rights violations between 1940 and 1980. It authorized the National Archives and Records Administration to create a collection of unsolved civil rights case files and established a review board to determine which records can be released to the public.

Discussion among members of the 11th Circuit panel Tuesday suggested that even if the records cannot be unsealed under the district court's authority, they may be eligible for release under the new law.

"Sounds like you have a winning argument under the Act," Chief U.S. Circuit Judge Ed Carnes, a George H.W. Bush appointee, told Pitch's attorney Joseph Bell of Bell & Shivas as arguments drew to a close Tuesday.

The Justice Department’s attorney, Hinshelwood, argued that the district court lacked inherent authority to disclose the transcripts and improperly permitted disclosure of the transcripts based solely on the historical significance of the lynching.

The government claims a federal rule prohibits the disclosure of grand jury records with few exceptions, none of which apply in Pitch's case.

"Individuals present in the grand jury room are bound by the rule of secrecy, except witnesses when they fall under an exception," Hinshelwood told the panel, explaining that "the obligation of secrecy runs with the record" even when it is transferred to the National Archives.

U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, noted that most grand jury records are destroyed after time has passed.

"Only some are preserved in the National [Archives], right? If there are a select few records saved for history in the National Archives, it doesn't make sense that historians wouldn't be able to see them," the judge said.

Wilson added that if the case was remanded, U.S. District Court Judge Marc Treadwell in Macon could make any necessary redactions to the records.

"Yes, but that assumes the district court has the right to release the records," Hinshelwood said.

But Bell, arguing on behalf of Pitch, told the panel that the 11th Circuit's 1984 decision in a case called Hastings granted federal judges an inherent power to release grand jury materials.

"With respect to inherent authority... district courts are divorced from grand jury proceedings. Why would we assume [a] district court has inherent authority over grand jury proceedings at all?" asked U.S. Circuit Judge Kevin Newsom, an appointee of President Donald Trump.

"Because the Supreme Court said so in Pittsburgh Plate Glass Co. v. United States," Wilson said, referring to a ruling from 1959.

The judges did not indicate when they will reach a decision in the case.

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Categories / Appeals, Courts, Government, National

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