United States District Court, M.D. Georgia, Macon Division
IN RE PETITION OF ANTHONY S. PITCH
T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE
matter involves a federal grand jury's investigation into
what has been described as the last mass lynching in the
United States. 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.
is a historian researching the July 25, 1946 murder of four
African-Americans 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 crushed
Carmichael in the county unit vote. Some believe the murders
were directly related to that election.
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. 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
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. 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
Grand Jury Secrecy Generally
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 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 guilt.
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.
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
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
441 U.S. at 222 (citing Proctor & Gamble Co.,
356 U.S. at 683, and Dennis v. United States, 384
U.S. 855 (1966)). 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 ...