Court weighing whether judge can unseal lynching records

Kate Brumback
Associated Press

Atlanta – Appeals court judges considering whether federal courts can order grand jury records unsealed in old cases of historical significance pointed out Tuesday that a recently passed federal law could provide another way to win release of those records arising from the brazen lynching of two black couples seven decades ago.

The young black sharecroppers were traveling a rural road in the summer of 1946 when a white mob stopped the car beside the Apalachee River, about 50 miles (80 kilometers) east of Atlanta. The mob dragged them out, led them to the riverbank and shot them multiple times in a case that horrified the nation that year.

The FBI investigated for months and more than 100 people reportedly testified before a grand jury, but no one was ever indicted in the deaths of Roger and Dorothy Malcom and George and Mae Murray Dorsey at Moore’s Ford Bridge in Walton County.

This Feb. 22, 2018, file 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. The gruesome lynching is prompting a U.S. court to consider whether federal judges can order grand jury records unsealed in old cases with historical significance.

Historian Anthony Pitch wrote about the unsolved killings – “The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town” – and continued his research after the book’s 2016 publication. He learned transcripts of the grand jury proceedings, once thought to have been destroyed, were stored by the National Archives.

At Pitch’s request, a federal judge in 2017 ordered the records unsealed. But the U.S. Department of Justice appealed , citing the secrecy of grand jury proceedings.

A three-judge panel of the 11th U.S. Circuit Court of Appeals ruled 2-1 in February to uphold the lower court’s order. But the full court voted to rehear the case, and oral arguments before all 12 judges were held Tuesday.

The judges had tough questions Tuesday for lawyers on both sides, making it unclear how they will rule on whether federal judges have inherent power to disclose grand jury records for reasons other than those specifically provided for in the rules governing grand jury secrecy.

But some of them indicated the Moore’s Ford grand jury records would likely be released regardless of how they rule.

The Civil Rights Cold Case Records Collection Act – passed by Congress and signed in January by the president – provides for the review and release of government records related to unsolved civil rights cold cases. It establishes a national archive of those documents and establishes a Civil Rights Cold Case Records Review Board to handle the review and disclosure.

“It sounds like to me you have a winning argument” for release of the records under that law, Chief Judge Ed Carnes told Pitch’s lawyer, Joseph Bell.

Bell noted that the legislation didn’t pass until the litigation was well underway. He also pointed out after the hearing that the review board provided for in the law doesn’t exist yet making it unclear when records could be released that way.

Pitch, 80, died in June, two weeks after learning the case would be reheard. His wife, Marion Pitch, took his place in the case. Laura Wexler, who wrote another book about the lynching, also joined the case at the family’s request.

The lynching happened in 1946 after Roger Malcom, 24, had been jailed after stabbing and gravely injuring a white man, Barnett Hester, during an argument. A white farmer, Loy Harrison, paid $600 to bail Malcom out on July 25, 1946. Harrison later said he was ambushed by a mob as he drove the Malcoms and Dorseys home.

Harrison, identified in an FBI report as a former Ku Klux Klansman and well-known bootlegger, wasn’t hurt. He told authorities he didn’t recognize anyone in the mob.

The investigation has been reopened and closed several times since the grand jury failed to indict anyone in December 1946. Students, researchers and activists have all tried to crack the case.

Rules governing grand jury secrecy include exceptions when records may be released. A 1984 ruling in the 11th Circuit, which set precedent, says judges may order their disclosure in “exceptional circumstances.”

Specifically, the judges asked the lawyers ahead of Tuesday’s arguments whether they should overturn the 1984 precedent. They also asked, if federal judges can grant disclosures beyond the defined exceptions, is “historical significance” an adequate reason?

Bell argued in a court filing before the hearing that the 1984 precedent shouldn’t be overruled because it acknowledges the need for “exceptional circumstances.” The historical importance and passage of time, as well as the fact that grand jury records have been released in other historically significant cases, supports the release of these records, he wrote.

Justice Department lawyer Bradley Hinshelwood countered in pre-hearing filings that Pitch’s arguments would allow federal judges to use their inherent power to circumvent rules on disclosure of grand jury materials set by Congress and the Supreme Court.

The Reporters Committee for Freedom of the Press and 30 news organizations, including The Associated Press, submitted a brief in support of Pitch that the court rejected without explanation.