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In re Petition of Pitch

United States District Court, M.D. Georgia, Macon Division

August 18, 2017

IN RE PETITION OF ANTHONY S. PITCH

          ORDER

          MARC T. TREADWELL, UNITED STATES DISTRICT COURT JUDGE

         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.

         I. BACKGROUND

         Pitch 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.[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. 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]

         II. DISCUSSION

         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 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. 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 proceeding;

         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 needed.

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 ...


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