ATLANTA – The grand jury records from the 1946 lynching of two black couples in Georgia cannot be released despite their great historical significance, a federal appeals court said.
The 11th U.S. Circuit Court of Appeals in Atlanta ruled 8-4 that federal judges don't have authority to disclose grand jury records for reasons other than those provided for in the rules governing grand jury secrecy.
Roger and Dorothy Malcom and George and Mae Murray Dorsey were riding in a car on a rural road in July 1946 when a white mob stopped it at Moore's Ford Bridge, overlooking the Apalachee River. The mob dragged the young black sharecroppers to the river’s edge and shot them to death.
The slayings shocked the nation, and the FBI descended upon the rural community in Walton County, about 50 miles (80 kilometers) east of Atlanta. Following a monthslong investigation, more than 100 people reportedly testified before a federal grand jury in December 1946, but no one was indicted.
Historian Anthony Pitch wrote about the 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.
Pitch, died in June at age 80, but his widow took on the fight, along with Laura Wexler, who wrote another book about the lynching and joined the case at the family's request.
A lawyer for Pitch's widow didn't immediately respond to an email seeking comment Monday.
Rules governing grand jury secrecy provide specific exceptions that allow for the release of records. An 11th Circuit decision from 1984 had said judges may go beyond that and order their disclosure in “exceptional circumstances.”
Relying on that precedent, a federal judge in 2017 granted Pitch's petition and ordered the Moore's Ford grand jury records unsealed. The U.S. Department of Justice appealed, citing the secrecy of grand jury proceedings.
A three-judge panel of the 11th Circuit ruled 2-1 in February 2019 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 in October.
The full court opinion released Friday reversed the lower court ruling that had been affirmed by the panel and also overturned the court's 1984 ruling.
The majority opinion written by Senior Judge Gerald Tjoflat says the exceptions listed in the grand jury secrecy rules are exhaustive. Judges “do not possess the inherent, supervisory power to order the release of grand jury records in instances not covered by the rule," he wrote.
In a concurring opinion, Judge Adalberto Jordan agreed that those exceptions are exclusive and that judges cannot go beyond them, but he said it's time to review the rules.
The Judicial Conference’s Advisory Committee on Criminal Rules in 2012 decided not to go forward with a proposal from then-U.S. Attorney General Eric Holder to amend the rules “to allow disclosure for historically significant grand jury materials,” Jordan wrote. The committee found the amendment unnecessary at the time but said the issue might be ripe for consideration later.
With a split between judicial circuits and a recent decision by the U.S. Supreme Court not to take up the issue, “it appears that day is upon us,” Jordan wrote.
Judge Charles Wilson wrote in a dissenting opinion that the court should leave in place its 1984 opinion and uphold the release of the Moore's Ford documents. A judge's power to disclose grand jury materials outside of the provided exceptions is limited and the burden on the petitioner is high, but this case meets that bar, he wrote.
The Civil Rights Cold Case Records Collection Act — passed by Congress and signed in January 2019 by the president — provides for the review and release of government records related to unsolved civil rights cold cases.
That makes it clear that Congress, which adopted the grand jury secrecy rules, intended for judges to have the authority to disclose grand jury records outside of the stated exceptions, Judge Robin Rosenbaum wrote in a separate dissent.
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 killings remain unsolved, despite law enforcement having reopened the case several times and efforts by students, researchers and activists to crack the case.
Before the October arguments, 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.