ORDER GRANTING 8 & 10 Motion Unseal Grand Jury Transcripts. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 8/18/2017. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
IN RE PETITION OF:
ANTHONY S. PITCH
MISCELLANEOUS NO. 5:14-MC-2 (MTT)
This matter involves a federal grand jury’s investigation into what has been
described as the last mass lynching in the United States.1 Both the murders and the
grand jury investigation took place in 1946. Anthony S. Pitch asks the Court to unseal
the grand jury’s records. For the following reasons, the petition is GRANTED.
Pitch is a historian researching the July 25, 1946 murder of four AfricanAmericans in Walton County, Georgia. The incident is commonly known as the Moore’s
Ford lynching. The victims, two married couples, were dragged from a car, tied to a
tree, and shot multiple times. According to most accounts, a crowd of some
considerable size was present. The murders occurred shortly after the racially charged
1946 Democratic Party gubernatorial primary election, the first Democratic primary in
Georgia in which black citizens were allowed to vote. In that election, former Governor
Eugene Talmadge lost the popular vote to progressive James V. Carmichael but
The Government does not dispute the historical significance of the Moore’s Ford lynching, and the
parties have freely discussed historical events that have not been formally documented in the Court’s
record. Given that the historical events are not disputed and are well documented, the Court does the
crushed Carmichael in the county unit vote.2 Some believe the murders were directly
related to that election.3
President Truman ordered the Federal Bureau of Investigation to investigate the
murders, and on December 3, 1946, District Court Judge T. Hoyt Davis convened a
grand jury.4 According to one account, the FBI interviewed 2,790 people and the grand
jury subpoenaed 106 witnesses. Laura Wexler, Fire in a Canebreak: The Last Mass
Lynching in America 190 (2003). Notwithstanding the breadth of the investigation and
the presence of a number of witnesses, no one identified any of the participants, and no
indictments for the murders were returned. The case remains unsolved.
On February 3, 2014, Pitch petitioned this Court for an order unsealing the grand
jury transcripts. Doc. 1. This Court denied the petition without prejudice on August 19,
2014 because, at the time, there was no evidence any records existed. Doc. 7 at 3.
Along with the white primary, the county unit system was an effective tool to marginalize black voters.
Created by the Neill Primary Act of 1917, the county unit system gave each county at a party’s
nominating convention two votes for each representative it had in the lower house of the General
Assembly. Based on this formula, by 1944, Georgia’s 159 counties had a total of 410 county unit votes.
Fulton County, with a population of more than 500,000, had six of these votes, two for each of its three
representatives. The three smallest counties, Glascock, Quitman, and Echols, with a combined
population of less than 7,000, matched the voting strength of Fulton County at the Democratic Party’s
nominating convention. See South v. Peters, 89 F. Supp. 672 (N.D. Ga. 1950). In 1962, the Supreme
Court ruled the county unit system unconstitutional. Baker v. Carr, 369 U.S. 186 (1962).
According to a Talmadge biographer, the Walton County Sheriff told a reporter the day after the murders
that he had no clues or suspects and nothing could be done. He added, however, “they hadn’t ought to
killed the two women.” A man standing nearby then commented: “This thing’s got to be done to keep
Mister N____ in his place. Since the court said he could vote, there ain’t been any holding him.” William
Anderson, The Wild Man From Sugar Creek: The Political Career of Eugene Talmadge 233 (1975); see
also Calvin Kytle & James A. Mackay, Who Runs Georgia? A Contemporary Account of the 1947 Crisis
that Set the Stage for Georgia’s Political Transformation 72 (1998) (“[T]he lynching of the four Negroes
near Monroe and the murder of another in Taylor County can be traced directly to the inflammatory nature
of the 1946 campaign.”).
Ironically, it was Judge Davis who ruled the Georgia Democratic white primary unconstitutional. King v.
Chapman, 62 F. Supp. 639 (M.D. Ga. 1945), aff’d Chapman v. King, 154 F.2d 460 (5th Cir. 1946). When
the Fifth Circuit affirmed Judge Davis on March 6, 1946, gubernatorial candidate Eugene Talmadge
launched his racially divisive campaign for Governor.
The assumption then was the records had been routinely destroyed or were somehow
lost. On January 17, 2017, Pitch renewed his motion, claiming that his investigation had
revealed the records were at the National Archives and Records Administration in
Washington, D.C. Docs. 8 at 7, 10. That same day, the Court ordered the Department
of Justice to produce the records for in camera inspection. Doc. 9. The Government
then confirmed that transcripts, but no other records, had been found and filed copies
under seal. Docs. 14; 16. Relying on Fed. R. Crim. P. 6(e), the Government now
maintains that the records must remain sealed.5
A. Grand Jury Secrecy Generally
“It has long been a policy of the law that grand jury proceedings be kept secret.”
United States v. Aisenberg, 358 F.3d 1327, 1346 (11th Cir. 2004) (quoting Blalock v.
United States, 844 F.2d 1546, 1555 (11th Cir. 1988)). “The English rule of grand jury
secrecy has been incorporated into our federal common law and remains ‘an integral
part of our criminal justice system.’” Id. The reasons, or “policy and spirit,” behind this
traditional rule of secrecy are:
(1) To prevent the escape of those whose indictment may be
contemplated; (2) to insure the utmost freedom to the grand
jury in its deliberations, and to prevent persons subject to
indictment or their friends from importuning the grand jurors;
(3) to prevent subornation of perjury or tampering with the
witnesses who may testify before grand jury and later appear
The Government does not question this Court’s jurisdiction or Pitch’s standing. Both issues were
addressed by the Seventh Circuit in Carlson v. United States, 837 F.3d 753 (7th Cir. 2016). For the
reasons stated there, it is clear this Court has jurisdiction and Pitch has standing. Id. at 757-58. Pitch
has a right to seek access to public records, including grand jury testimony. See id. at 758-60. Denial of
access to those records is an “injury in fact.” See id. Additionally, this denial is directly traceable to the
Government, and the injury can be redressed by the relief he seeks, giving him standing to assert this
action. See id. at 759-60. Additionally, this Court has federal question jurisdiction under 28 U.S.C. §
1331 as the action is “arising under the Constitution, laws, or treaties of the United States.” Carlson, 837
F.3d at 761.
at the trial of those indicted by it; (4) to encourage free and
untrammeled disclosures by persons who have information
with respect to the commission of crimes; (5) to protect
innocent accused who is exonerated from disclosure of the
fact that he has been under investigation, and from the
expense of standing trial where there was no probability of
United States v. Proctor & Gamble Co., 356 U.S. 677, 681 n.6 (1958) (quotation marks
omitted) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954).
Federal Rule of Criminal Procedure Rule 6(e) codifies this general rule of
secrecy, with narrow exceptions. The only Rule 6(e) exception available to a party
other than the government or a defendant is Rule 6(e)(3)(E)(i):
(E) The court may authorize disclosure—at a time, in a
manner, and subject to any other conditions that it directs—
of a grand-jury matter:
(i) preliminarily to or in connection with a judicial
A party invoking this exception must prove “particularized need.” See United States v.
Baggot, 463 U.S. 476, 479-480, 480 n.4 (1983); see also United States v. John Doe,
Inc. I, 481 U.S. 102, 112 (1987); In re Am. Historical Ass'n, 49 F. Supp. 2d 274, 283
(S.D.N.Y. 1999). In Douglas Oil Co. of Ca. v. Petrol Stops NW, 441 U.S. 211 (1979),
the Supreme Court addressed what it takes to establish particularized need:
Parties seeking grand jury transcripts under Rule 6(e) must
show the material they seek is needed to avoid a possible
injustice in another judicial proceeding, that the need for
disclosure is greater than the need for continued secrecy,
and that their request is structured to cover only material so
441 U.S. at 222 (citing Proctor & Gamble Co., 356 U.S. at 683, and Dennis v. United
States, 384 U.S. 855 (1966)).6 Thus, a party other than the government or a defendant
seeking disclosure of grand jury records under Rule 6(e)(3)(E)(i) holds the burden of
satisfying the three-prong Douglas Oil test. See id.
But it has long been recognized that a district court’s authority to order disclosure
of grand jury records is not limited to the exceptions found in Rule 6(e). In this circuit,
the most comprehensive discussion of the inherent authority of district courts to order
disclosure of grand jury records is found in In re Petition to Inspect and Copy Grand
Jury Materials (Hastings), 735 F.2d 1261 (11th Cir. 1984). In Hastings, a judicial
investigating committee sought records of a grand jury that had returned an indictment
against a federal district court judge. Id. at 1263-65. The judge, who had been
acquitted of the charges in the indictment, opposed disclosure of the records. Id. at
1264. He argued, among other things, that Rule 6(e) “is the controlling source of law in
this area and that none of its stated exceptions to the rule of secrecy” allowed the
judicial investigating committee access to the records. Id. at 1267. The district court
disagreed, reasoning that Rule 6(e) did not provide “the exclusive framework” within
which a district court could exercise its discretion to release grand jury records. Id.
Relying on the court’s “general supervisory authority over grand jury proceedings,” the
district court ordered the disclosure of the grand jury records. Id. at 1267-68. The
See also United States v. Sells Eng’g, Inc., 463 U.S. 418, 442-43 (1983) (applying the Douglas Oil test
as the standard for determining “particularized need”); Baggot, 463 U.S. at 479-80, 80 n.4 (characterizing
the test articulated in Douglas Oil as the “particularized need test,” which “requires that the materials
sought be ‘needed to avoid a possible injustice in another judicial proceeding’ and that the moving party's
request be ‘structured to cover only material so needed’” (quoting Douglas Oil Co., 441 U.S. at 222));
United States v. Gonzalez, 452 F. App’x 844, 847 (11th Cir. 2011) (“In order to demonstrate a
particularized need, the requesting party must show that ‘the material [he] seek[s] is needed to avoid a
possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for
continued secrecy, and that [his] request is structured to cover only material so needed.’” (quoting
Douglas Oil, 441 U.S. at 222)).
Eleventh Circuit affirmed, holding that the district court’s conclusion “that it had inherent
power beyond the literal wording of Rule 6(e) is amply supported.” Id. at 1268. To
reach this conclusion, the Eleventh Circuit carefully examined the history of Rule 6(e).
Noting that the Supreme Court had ruled that Rule 6(e) is “but declaratory” of the
principle that disclosure is committed to the discretion of district judges and that the
Advisory Committee’s notes on Rule 6(e) acknowledge that the Rule “continues the
traditional practice of secrecy . . . except when the court permits a disclosure,” the
Eleventh Circuit concluded that “it is certain that a court’s power to order disclosure of
grand jury records is not strictly confined to instances spelled out in the rule.” Id. at
1268 (quoting Fed. R. Crim. P. 6 advisory committee’s note to (e)). Accordingly, the
court concluded that “the exceptions permitting disclosure were not intended to ossify
the law, but rather are subject to development by the courts in conformance with the
rule’s general rule of secrecy.” Id. at 1269.
Simply put, a district court’s power to order disclosure of grand jury records does
not “stand or fall upon a literal construction of the language of Rule 6(e).” Id. But while
district courts have authority to act outside Rule 6(e), they should turn to that authority
only if there exist “exceptional circumstances consonant with the rule’s policy and spirit.”
Id. at 1269.
B. Pitch’s Request for Disclosure
Pitch argues the Moore’s Ford lynching grand jury transcripts should be unsealed
to “enhance the historical record, foster scholarly discussion and improve the public’s
understanding of this historical event.” Doc. 8 at 7-8. The Eleventh Circuit has not
addressed the issue of whether the historical significance of grand jury records can
provide a basis for disclosure. However, every circuit that has addressed the issue has
recognized a “historical exception” to the traditional rule of grand jury secrecy.7 Relying
on these cases, Pitch mainly argues that there is no reason to think the Eleventh Circuit
would not recognize a historical exception as well and contends that the facts here
clearly warrant unsealing the 71-year-old transcripts.8
For its part, the Government disputes neither the historical significance of the
grand jury transcripts nor the legitimate public interest in the Moore’s Ford lynching.
Rather, the Government opposes disclosure on very narrow grounds; it contends,
effectively, that Rule 6(e) provides the sole basis for disclosing grand jury records and
because Pitch’s request does not fall within any of the exceptions provided by Rule 6(e),
his petition must be denied.
See, e.g., Craig, 131 F.3d 99 (2d Cir. 1997) (“[I]n some situations historical or public interest alone could
justify the release of grand jury information.”); In re Petition of Nat. Sec. Archive, 104 F. Supp. 3d 625
(S.D.N.Y. 2015) (ordering disclosure of grand jury testimony from the Julius and Ethel Rosenberg
investigation); In re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (ordering disclosure of President
Nixon’s grand jury testimony related to the Watergate investigation based on their “historical importance”);
In re Tabac, 2009 WL 5213717 (M.D. Tenn. 2009) (ordering disclosure of grand jury transcripts from the
investigation, indictment, and conviction of Jimmy Hoffa based on their “great historical importance”); In re
Petition of Am. Historical Ass’n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999) and In re Petition of Am. Historical
Ass’n, 62 F. Supp. 2d 1100 (S.D.N.Y. 1999) (both ordering disclosure of grand jury transcripts from the
investigation of Alger Hiss, an alleged Soviet spy, based on their “manifest historical importance”). The
Court notes that in United States v. McDougal, the Eighth Circuit denied the petitioner’s request for the
release of her grand jury testimony during the Whitewater investigation. See generally 559 F.3d 837. In
that case, the petitioner, in arguing for disclosure, asserted the “‘common law right of access to court
proceedings and records’ and the ‘[c]ourt’s supervisory power over its own records and files’” but did not
argue for a historical exception to the general rule of grand jury secrecy. Id. at 840. Moreover, in
McDougal, the Eighth Circuit opined that Rule 6(e) was the only avenue of disclosure absent a showing
that the records were sealed in error. Id. at 840-41. But, as discussed above, this is inconsistent with the
law of this Circuit, which, despite the Government’s contention, recognizes that courts have the inherent
authority to order disclosure beyond Rule 6(e). Aisenberg, 358 F.3d at 1347.
Pitch also tries to fashion an argument that his request falls within Rule 6(e)(3)(E)(i). His petition, he
seems to argue, constitutes a “judicial proceeding,” and thus his request meets the Douglas Oil standard.
This bootstrap effort is a nonstarter in every way. Certainly his request is made through a judicial
proceeding, but a request is not made “preliminarily to or in connection with” a judicial proceeding simply
because a petition seeking disclosure is filed. See Baggot, 463 U.S. at 479 (“[T]he term ‘in connection
with’ . . . refer[s] to a judicial proceeding already pending, while ‘preliminarily to’ refers to one not yet
initiated.”). In other words, Pitch’s request does not fall within Rule 6(e)(3)(E)(i), and he cannot satisfy the
first prong of Douglas Oil—that the transcripts are needed “in another judicial proceeding”—by filing this
proceeding to compel disclosure. See Douglas Oil, 441 U.S. at 222.
1. United States v. Aisenberg
Because the Government’s opposition is based almost entirely on United States
v. Aisenberg, 358 F.3d 1327 (11th Cir. 2004), the Court begins its analysis there. The
Aisenbergs sought disclosure of grand jury testimony under both the district court’s
inherent authority and Rule 6(e), but the purpose for which they made their request was
one covered by a Rule 6(e) exception, specifically Rule 6(e)(3)(E)(i). 358 F.3d at 13471348. The Aisenbergs wanted to use grand jury testimony to bolster their application for
attorneys’ fees under the Hyde Amendment in a criminal prosecution gone wrong. Id. at
1335. Thus, their request was clearly “preliminarily to or in connection with a judicial
proceeding.” Fed. R. Crim. P. 6(e)(3)(E)(i). Therefore, the question was whether
Douglas Oil’s “particularized need” test applied to a request made pursuant to both the
district court’s inherent authority and Rule 6(e)(3)(E)(i) when the request was for a
purpose clearly contemplated by that Rule.
In effect, the Aisenbergs were hedging their bets. Because Rule 6(e)(3)(E)(i)
provided an exception directly applicable to their request, they moved pursuant to that
Rule. But in the event they could not meet the Rule 6(e)(3)(E)(i) test for disclosure, they
wanted the district court to exercise its inherent authority to release the records. Not
surprisingly, the Eleventh Circuit took a dim view of this approach. Clearly, the
Aisenbergs were attempting an end run around Douglas Oil’s particularized need test.
Allowing a party to avoid Douglas Oil in a situation where it clearly applied would not be
within the “policy and spirit” of Rule 6. Accordingly, in reversing the district court’s
disclosure, the Eleventh Circuit held that the Aisenbergs could not invoke the district
court’s inherent authority. Aisenberg, 358 F.3d at 1347-48. Rather, they had to
proceed under Rule 6(e). Id.
The Government asks the Court to put a different, much broader, spin on
Aisenberg. The Government argues Aisenberg does more than simply hold that the
Douglas Oil test governs when a request is clearly covered by Rule 6(e)(3)(E)(i). The
Government reads Aisenberg to say that a party invoking the court’s inherent authority
to disclose grand jury records still must satisfy Douglas Oil, including the first prong:
“that the material they seek is needed to avoid a possible injustice in another judicial
proceeding.” Doc. 11 at 5 (quoting Aisenberg, 353 F.3d at 1347). Effectively, this
would mean that the only time someone other than the Government or a defendant can
seek disclosure of grand jury records is when the records are sought “preliminarily to or
in connection with a judicial proceeding” as provided by Rule 6(e)(3)(E)(i).9 The
Government acknowledged as much at the June 8 hearing:
The Court: So you would read Aisenberg to mean that the
only reason grand jury records can be released are for the
reasons stated in Rule 6?
[Government]: Yes, sir, as far as – yes, sir, essentially.
The Court disagrees. Instead, the Court reads Aisenberg to hold that when a party
seeks disclosure for a reason or purpose contemplated by Rule 6(e)’s exceptions, Rule
6(e) governs the request. Again, it would make no sense to allow a party who cannot
While the Government effectively argues that Rule 6(e)(3)(E)(i) provides the only basis for disclosure
here, the Government argued this expressly in Carlson v. United States, 837 F.3d 753 (7th Cir. 2016). In
persuasive reasoning, the majority rejected that argument and found that “the Criminal Rules did not
eliminate a district court’s inherent supervisory power” over the grand jury. Id. at 762. In doing so, the
court noted Rule 57(b), which recognizes that courts have the authority to regulate procedure where there
is no controlling law but mandates they do so in a “manner consistent with federal law, these rules, and
the local rules of the district.” Id. (“To be sure, [district courts] are powerless to contradict the Rules
where they have spoken . . . . But Rule 57(b) . . . informs us what a court may do when the Rules are
silent.” (quoting Fed. R. Crim. P. 57(b))). Moreover, the court described Rule 6(e) as “permissive” and
stated “such a rule should not give rise to a negative inference that it abrogates the district court’s
inherent authority absent ‘clear [ ] expression of [that] purpose.” Id. at 763.
satisfy a governing Rule 6(e) exception to avoid Rule 6(e) by running to a district court’s
But neither would it make sense to read Aisenberg to effectively gut a district
court’s inherent authority to disclose grand jury records. The Government’s argument is
irreconcilable with the clear holding in Hastings that district courts are not limited to Rule
6(e)’s exception. 735 F.2d at 1268. Indeed, the Eleventh Circuit recognized in
Aisenberg that district courts have the inherent authority to act outside Rule 6(e) in
exceptional circumstances. Aisenberg, 358 F.3d at 1347-48.
In sum, the Court reads Aisenberg to hold that when a request for grand jury
records is covered by Rule 6(e)’s exceptions, then those exceptions govern. But when
a request falls outside the listed exceptions of Rule 6(e), district courts have the
inherent authority to order disclosure.
2. The “Historical Exception” to Grand Jury Secrecy
Pitch’s request does not fit within any of Rule 6(e)’s exceptions. Although district
courts may act outside Rule 6(e) to order disclosure of grand jury records, the Eleventh
Circuit has made clear they should do so only if there exist “exceptional circumstances
consonant with the rule’s policy and spirit.” Hastings, 735 F.2d at 1270. The question
then is whether the historical significance of grand jury records can constitute an
In Hastings, when determining whether exceptional circumstances existed, the
Eleventh Circuit looked to Supreme Court precedent and concluded “disclosure is
appropriate only in those cases where the need for it outweighs the public interest in
secrecy . . . .” 735 F.2d at 1272 (quoting Douglas Oil, 441 U.S. at 223). In other words,
the Court must apply a balancing test to determine whether exceptional circumstances
are present, weighing carefully the factors favoring continued secrecy and the factors
favoring public access to, in this case, historical information. In applying this balancing
test, the Court also considers the factors considered by the Second Circuit in In re Craig
and by other courts recognizing the historical exception.10 131 F.3d 99, 106 (2d Cir.
1997); see, e.g., Carlson v. United States, 837 F.3d 753 (7th Cir. 2016); In re Am.
Historical Ass’n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999).
The Court begins with the secrecy end of the scales of this balancing test. The
Court begins there because the Moore’s Ford lynching grand jury adjourned nearly 71
years ago and, logically enough, “as the considerations justifying secrecy become less
relevant, a party asserting a need for grand jury transcripts will have a lesser burden in
showing justification.” Hastings, 735 F.2d at 1272. The reasons for grand jury secrecy
are found, as discussed above, in the Supreme Court’s decision in United States v.
Proctor & Gamble Co, 356 U.S. 677 (1958). Grand jury secrecy is necessary to prevent
flight by those being investigated; to insure that grand jurors can operate with the
utmost freedom; to prevent witness tampering; to encourage full disclosure by
witnesses; and to protect the ultimately innocent who nevertheless are the subject of
In Craig, the Second Circuit considered:
(i) the identity of the party seeking disclosure; (ii) whether the defendant
to the grand jury proceeding or the government opposes the disclosure;
(iii) why disclosure is being sought in the particular case; (iv) what
specific information is being sought for disclosure; (v) how long ago the
grand jury proceedings took place; (vi) the current status of the principals
of the grand jury proceedings and that of their families; (vii) the extent to
which the desired material—either permissibly or impermissibly—has
been previously made public; (viii) whether witnesses to the grand jury
proceedings who might be affected by disclosure are still alive; and (ix)
the additional need for maintaining secrecy in the particular case in
131 F.3d at 106.
grand jury investigation. Id. at 681 n.6 (quoting United States v. Rose, 215 F.2d 617,
628-29 (3d Cir. 1954). The Government does not contend that any of these
considerations will be furthered by the continued secrecy of the Moore’s Ford lynching
grand jury transcripts, and it is clear they are no longer relevant. As far as is known, all
suspects, witnesses (with the possible exception of then very young children), and all
grand jurors are dead. Further, it is beyond any reasonable possibility that a new
criminal investigation could be opened. But while there is no reason particular to the
Moore’s Ford lynching to keep the grand jury records secret, the general “public interest
in encouraging free and untrammeled testimony before future grand juries is still
important.” Hastings, 735 F.2d at 1274. But, of course, grand jury records do not
always remain secret. Still, there remains some weight, albeit greatly diminished, on
the secrecy end of the scales.
But Pitch must still establish a need for the grand jury records that outweighs any
secrecy interest, however slight it may be. Several of the Craig factors are relevant to
this end of the scales: (1) “the identity of the party seeking disclosure”; (2) “why
disclosure is being sought”; and (3) “the extent to which the desired material . . . has
been made public.” 131 F.3d at 106. Essentially, these factors call for the examination
of the legitimacy of the person or entity seeking disclosure and the reason for which
disclosure is sought.
The Government does not dispute that Pitch is an accomplished author who has
written many historical works, including a book on the Moore’s Ford lynching, The Last
Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town, published in
March 2016.11 Doc. 8 at 1-2; Cf. In re Petition of Stuart McKeever, 1:13-mc-00054-RCL
(D.D.C. 2017) (stating fact that the petitioner was a “bona fide author” who had
researched the case and published a book on it favored disclosure under Craig). He
undeniably seeks disclosure for a legitimate and important purpose—historical research
into the unsolved murders that occurred at Moore’s Ford. See generally Doc. 8.
Clearly, the Moore’s Ford lynching is a significant historical event. Just as
clearly, the testimony of the dozens of witnesses who testified before the grand jury has
historical significance. There has been and there continues to be significant public
interest in the unsolved murders, the events that led up to them, and the ensuing
investigation.12 Cf. Craig, 131 F.3d at 107 (“[I]f historical interest in a specific case has
persisted over a number of years, that serves as an important indication that the public’s
interest in release of the information is substantial.”).
But while the Moore’s Ford lynching has been the subject of considerable public
interest, the public record is relatively sparse. There was no state prosecution, no trials,
or other public proceedings following the federal grand jury’s investigation. Because the
murders remain unsolved, much of the public interest in the ensuing years has naturally
centered on speculation over the identity and motive of the murderers and why, given
the number of witnesses, the murders could not be solved. The transcripts will add
considerably to the public record, and with no witnesses to interview, the grand jury
In his Petition, Pitch says he is an historian of some renown, the author of eleven non-fiction works, and
the recipient of much recognition for his work. Doc. 8 at 1-2.
See, e.g., Wayne Ford, 70th Observance of Moore’s Ford lynching set in Monroe; reenactment of
killings planned, Athens Banner-Herald (July 21, 2016, 1:35 PM), http://onlineathens.com/mobile/201607-21/70th-observance-moores-ford-lynching-set-monroe-reenactment-killings-planned.
transcripts likely represent the last available source of information about what transpired
at Moore’s Ford.
Given all this, the Court finds that Pitch has established exceptional
circumstances consonant with the policy and spirit of Rule 6(e). The reasons behind
the traditional rule of grand jury secrecy, and thus the policy undergirding Rule 6(e), are
no longer implicated. There is no need to protect witnesses from retribution, public
scrutiny, or undue influence; there is no fear that suspects will flee; and innocent victims
of grand jury scrutiny will not be embarrassed. Nothing favors continued secrecy other
than the bare principle that grand jury proceedings should be secret, and while that is
important, it is outweighed by the historical significance of the grand jury transcripts and
the critical role they can play in enhancing the historical record of the tragic event that
occurred at Moore’s Ford. Indeed, it is difficult to imagine a more suitable case for the
application of a historical exception to the rule of grand jury secrecy; of the cases
applying the historical exception, none has involved events that took place over 70
years before the disclosure was ordered. Accordingly, the Court finds that Pitch has
established exceptional circumstances that warrant the exercise of the Court’s inherent
authority to order disclosure.
The Court GRANTS Pitch’s request. But the Court notes that the Government
has presented only a blanket objection to the release of the grand jury transcripts. The
Court therefore affords the Government 21 days to provide objections to specific
portions of the transcripts, if it so chooses. Otherwise, and absent appeal, the
transcripts will be disclosed in their entirety.
SO ORDERED, this 18th day of August, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL
UNITED STATES DISTRICT COURT
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