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A 1946 Mob Lynching Puts Court Focus on Grand Jury Secrecy

AP Photo/David Goldman, File

A historian's quest for the truth about a gruesome lynching of two black couples has a U.S. appeals court considering whether federal judges can order grand jury records unsealed in decades-old cases with historical significance.

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, just over 50 miles (80 kilometers) east of Atlanta. The mob dragged them out, led them to the riverbank and shot them multiple times.

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.

Historian Anthony Pitch wrote a book about the killings — "The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town" — and continued his research after its 2016 publication. He learned transcripts from the grand jury proceedings, thought to have been destroyed, were stored by the National Archives.

Heeding 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 in February ruled 2-1 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.

Pitch, 80, died just two weeks after the announcement the case would be reheard. His wife, Marion Pitch, has taken his place in the case. Pitch's family also approached Laura Wexler, who wrote another book about the lynching, for help completing his work, and she joined the case.

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?

Pitch's lawyer, Joseph 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 grant 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. Even if judges did have the authority to establish other exceptions, Hinshelwood argued, it would only extend to judicial matters before them and not to disclosures based on historical interest.

The judges had tough questions for lawyers on both sides on Tuesday, making it difficult to speculate 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 the judges did suggest there seems to be another way the records could be released.

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 Bell.

Bell noted that the litigation in the case was already underway by the time the legislation passed, and said it seemed that unsealing by the court would be quicker. He pointed out after the hearing that the review board provided for in the law hasn't even been formed yet.

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