Full 11th Circuit Blocks Release of Lynching Records

This February 2018 photo shows a bridge that spans the Apalachee River at Moore’s Ford Road where, in 1946, two young black couples were stopped by a white mob who dragged them to the riverbank and shot them multiple times in Monroe, Ga. (AP Photo/David Goldman, File)

ATLANTA (CN) — Weighing grand jury secrecy against the historical significance of unreleased records about a 1946 mob lynching in Georgia, the en banc 11th Circuit ruled Friday that grand jury transcripts from the unsolved Moore’s Ford case cannot be unsealed.

In a 8-4 split, the Atlanta-based appeals court refused to make an exception to a federal rule to allow for the release of grand jury transcripts in what is widely considered the last mass lynching in American history.

The ruling may mark the end of a fight started by the late historian Anthony Pitch and continued by his widow Marion Pitch to uncover records that could shed light on the deaths of Roger and Dorothy Malcom and George and Mae Murray Dorsey.

The two black couples were stopped by a mob as they drove along a road outside of Atlanta and were dragged from their car, tied to a tree and shot.

Although over 100 people reportedly testified before a grand jury in late 1946, no one was ever indicted for the crime.

An 11th Circuit panel previously upheld a lower court’s decision to release grand jury materials in the case. In a February 2019 ruling, the three-judge panel found that district courts can authorize the disclosure of grand jury records outside of Rule 6(e) of the Federal Rules of Criminal Procedure’s exceptions in certain “exceptional circumstances.”

Rule 6(e) codifies the rule of grand jury secrecy and determines under what conditions the records of grand jury proceedings may be released.

Friday’s reversal comes after a full 12-member panel of the court reheard arguments in the case in October following a vote to vacate the prior decision.

The en banc court ruled that all instances in which a district court can disclose grand jury materials are already codified in Rule 6(e), calling the rule “exhaustive.”

The court overturned its 1984 ruling in In re Petition to Inspect & Copy Grand Jury Materials (Hastings), which held that district courts have power to go beyond the exceptions listed in Rule 6(e).

“District courts may only authorize the disclosure of grand jury materials if one of the five exceptions listed in Rule 6(e)(3)(E) applies; they do not possess the inherent, supervisory power to order the release of grand jury records in instances not covered by the rule,” Senior U.S. Circuit Judge Gerald Tjoflat, a Gerald Ford appointee, wrote on behalf of the majority.

In a dissenting opinion, U.S. Circuit Judge Charles Wilson, a Bill Clinton appointee, called the majority’s view of the case “anti-textual and anti-historical.”

Wilson said he would uphold the 11th Circuit’s precedent that district courts have the power to disclose grand jury materials, noting that district court judges very rarely exercise that power and the federal appeals court has oversight over those decisions.

According to the dissent, district courts in the 11th Circuit have only unsealed grand jury transcripts twice since the court was established in 1981.

Wilson was joined in the dissent by U.S. Circuit Judges Beverly Martin and Jill Pryor, both Barack Obama appointees. U.S. Circuit Judge Robin Rosenbaum, another Obama appointee, dissented in a separate opinion.

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