A mob lynching of 4 black sharecroppers in 1946 is focus of court battle over grand jury secrecy

  
Via:  perrie-halpern  •  4 weeks ago  •  23 comments

 A mob lynching of 4 black sharecroppers in 1946 is focus of court battle over grand jury secrecy
The young black sharecroppers were being driven along a rural road when they were stopped by a white mob beside the Apalachee River, just over 50 miles east of Atlanta.

S E E D E D   C O N T E N T


By The Associated Press


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

The young black sharecroppers were being driven along a rural road in the summer of 1946 when they were stopped by a white mob beside the Apalachee River, just over 50 miles east of Atlanta. The mob dragged them out, led them to the riverbank and shot them multiple times. For months the FBI investigated 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, arguing grand jury proceedings are secret and should remain sealed.

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 is set to hear oral arguments Tuesday.

Pitch, 80, died just two weeks after the announcement the case would be reheard. His wife, Marion Pitch, has taken her husband's 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.

In 1946, Roger Malcom, 24, was jailed after stabbing and gravely injuring a white man during an argument. A white farmer, Loy Harrison, paid $600 to bail Malcom out on July 25 of that year. Harrison later said he was ambushed by a mob as he drove the four home. Harrison, who is 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 a 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 binding precedent, says judges may order their disclosure in "exceptional circumstances." The historical significance in this case qualifies, Judge Charles Wilson wrote in the panel's majority opinion. He added that enough time has passed that witnesses, suspects or their immediate family members likely aren't alive to be intimidated, persecuted or arrested.

Concurring, Judge Adalberto Jordan agreed that lower court's ruling should be upheld because of the binding precedent. But Jordan said he would have decided the 1984 case differently. Allowing judges to use inherent authority to go beyond the defined exceptions to grand jury secrecy seems too open-ended, he wrote.

U.S. District Judge James Graham of Ohio, also serving on the panel, dissented. He argued that "judges should not be so bold as to grant themselves the authority to decide that the historical significance exception should exist and what the criteria should be." He also worried people alive today could see their reputations harmed if the records reveal their relative "was a suspect, a witness who equivocated or was uncooperative, a member of the grand jury which refused to indict or a person whose name was identified as a Klan member."

The full 12-judge appeals court is scheduled to hear Tuesday's arguments. Specifically, the judges asked the lawyers whether they should overturn the 1984 precedent. Additionally, they 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 that the 1984 precedent shouldn't be overruled because it acknowledges the need for "exceptional circumstances."

"The historical importance and age of the case, lack of indictment after over seventy years, and fact that other historically significant grand jury records have been released all support the release of the records," Bell wrote

Justice Department lawyer Bradley Hinshelwood countered that Pitch's arguments would allow federal judges to circumvent rules set by Congress and the Supreme Court about the disclosure of grand jury materials.

The rules governing grand jury secrecy provide a "meticulously crafted list of permissible disclosures," Hinshelwood wrote. Even if judges did have the authority to establish other exceptions, it wouldn't extend to historical interest.

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.


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Perrie Halpern R.A.
1  seeder  Perrie Halpern R.A.    4 weeks ago

It is important to understand that grand juries do not operate the same way as regular juries do. Before making a decision on how you feel about this, you might want to read this:

The function of a grand jury is to accuse persons who may be guilty of a crime, but the institution is also a shield against unfounded and oppressive prosecution. It is a means for lay citizens, representative of the community, to participate in the administration of justice. It can also make presentments on crime and maladministration in its area. Traditionally, a grand jury numbers 23 members.

The mode of accusation is by a written statement of two types: 1) in solemn form (indictment) describing the offense with proper accompaniments of time and circumstances, and certainty of act and person, or 2) by a mode less formal, which is usually the spontaneous act of the grand jury, called presentment. [6]   No indictment or presentment can be made except by concurrence of at least twelve of the jurors. The grand jury may accuse upon their own knowledge, but it is generally done upon the testimony of witnesses under oath and other evidence heard before them. The proceedings of grand jury are, in the first instance, at the instigation of the government or other prosecutors, and   ex parte   and in secret deliberation. The accused has no knowledge nor right to interfere with their proceedings. [7]

If they find the accusation true, which is usually drawn up in form by the prosecutor or an officer of the court, they write upon the indictment the words "a true bill" which is signed by the foreman of the grand jury and presented to the court publicly in the presence of all the jurors. If the indictment is not proven to the satisfaction of the grand jury, the word " ignoramus " [8]   or "not a true bill" is written upon it by the grand jury, or by their foreman and then said to be ignored, and the accusation is dismissed as unfounded. (The potential defendant is said to have been "no-billed" by the grand jury.) If the grand jury returns an indictment as a true bill ("billa vera"), the indictment is said to be founded and the party to stand indicted and required to be put on trial. [9]

 
 
 
FLYNAVY1
2  FLYNAVY1    4 weeks ago

The function of a honest and true court that observes the rule of law is the foundation of our country.  Like any judge and jury, a grand jury can be tainted simply because of where the jurors are pulled from.  

While a piece of fiction, the jury scene from the movie.... "To kill a mockingbird." is in my opinion,probably an accurate representation of how the legal system treated and still treats people of color in the south.  Our courts have been stacked against Native Americans for centuries, and now are being set to target Latinos to deny them justice.  

The fairness of our legal system is the worst in the world, until you compare it to every other system out there.  I suggest we continue to limp along with it as best we can while continuing to make it better.  

 
 
 
Perrie Halpern R.A.
2.1  seeder  Perrie Halpern R.A.  replied to  FLYNAVY1 @2    4 weeks ago

It is important to remember that putting together a "Jury of your peers" is not that easy. I once sat on a case where every person there was a teacher. None of us was a peer. But teachers in NYS, do not get penalized for jury duty and hence why many juries are composed of them. 

I also sat on a Grand Jury and was shocked that the DA can ask the suspect any question and the defense is not allowed to speak. To me, this seemed unfair. The DA can ask any question in almost any way that makes the person sound guilty and a trial inevitable.

That being said, I have to agree with you  when you say:

The fairness of our legal system is the worst in the world, until you compare it to every other system out there.  I suggest we continue to limp along with it as best we can while continuing to make it better.  
 
 
 
gooseisgone
2.1.1  gooseisgone  replied to  Perrie Halpern R.A. @2.1    4 weeks ago

That's why they say a grand jury can indict a "ham sandwich". 

 
 
 
Ender
3  Ender    4 weeks ago

I don't get why the government would want to block all of it from being released.

Imo it makes it sound like they are covering up something.

 
 
 
Perrie Halpern R.A.
3.1  seeder  Perrie Halpern R.A.  replied to  Ender @3    4 weeks ago

The government has been both a hindrance and helpful. It seems that the historian's book has really given the legal system a kick in the ass. 

But yes, until this point, it does appear they were trying to hide something. 

 
 
 
1stwarrior
3.1.1  1stwarrior  replied to  Perrie Halpern R.A. @3.1    4 weeks ago

In the Southeast and Mid-eastern states, the KKK ruled with an iron thumb.  There are many, many atrocities that were conducted in the 18/1900's that no one will ever know the full story nor the reason for the heinous crimes that were committed under the "purity" belief.  Hell, there are plenty of churches in both arenas in today's world who still hold extremely racist thoughts and they aren't taken to task.  Are they also going to face grand jury secrecy invasion?

 
 
 
Larry Hampton
3.1.2  Larry Hampton  replied to  1stwarrior @3.1.1    4 weeks ago

There are plenty of churches in both arenas in today's world who still hold extremely racist thoughts and they aren't taken to task.  Are they also going to face grand jury secrecy invasion?

I don’t understand your query 1st? Are you equating exploring Unsolved murder cases to racist attitudes in religious establishments? I’m unsure of the point of your argument. 

 
 
 
Perrie Halpern R.A.
3.1.3  seeder  Perrie Halpern R.A.  replied to  Larry Hampton @3.1.2    4 weeks ago

Ditto.

 
 
 
Nerm_L
3.2  Nerm_L  replied to  Ender @3    4 weeks ago
I don't get why the government would want to block all of it from being released. Imo it makes it sound like they are covering up something.

Yes, the government is covering up something.  The government compels witnesses to testify and compels jurors to hear testimony.  The purpose of sealing grand jury records fulfills the government's obligation to protect witnesses and jurors. 

A grand jury is not a court proceeding.  There isn't an opportunity to impeach witness testimony.  A grand jury is not impaneled to discover truth; a grand jury is a prosecutor's tool used to build a winnable case.  A grand jury does not deliver truth or provide justice, only a court can do that.

 
 
 
Ender
3.2.1  Ender  replied to  Nerm_L @3.2    4 weeks ago

Yeah but I tend to think most of the people involved are long gone. There is nothing left to protect, except maybe the reputations of some that are no longer with us.

A judge has a legal right to decide when and if any grand jury is made public. It is something in the national archives now.

 
 
 
Nerm_L
3.2.2  Nerm_L  replied to  Ender @3.2.1    4 weeks ago
Yeah but I tend to think most of the people involved are long gone. There is nothing left to protect, except maybe the reputations of some that are no longer with us.

It's a precedent that weakens the obligation to protect witnesses and jurors.  While the story is about the left's favorite topic of race relations, those protections are far more important for efforts to indict members of organized crime and efforts to confront corporate corruption and crime.

A judge has a legal right to decide when and if any grand jury is made public. It is something in the national archives now.

Grand jury testimony and material is controlled by the prosecutor's office that impaneled the grand jury.  Grand jury materials are not a public record as are court proceedings.  Prosecutors are officers of the executive branch of government and not officers of the judicial branch of government.  A judge does not preside over a grand jury and a judge may not have jurisdiction over records of a grand jury because of the separation of powers.

 
 
 
Ender
3.2.3  Ender  replied to  Nerm_L @3.2.2    4 weeks ago
 As such, according to these courts, Rule 6(e)’s
enumeration of circumstances in which courts may authorize disclosure of matters occurring before a
grand jury “does not, by itself, eliminate the court’s power to address situations that the Rule does not
describe.” Courts that have found they possess inherent authority to permit disclosure of grand jury
materials beyond the text of Rule 6(e) have nonetheless generally cabined the exercise of such authority
to “special circumstances,” most frequently where there is significant public interest in proceedings that
have already concluded.
https://fas.org/sgp/crs/secrecy/LSB10201.pdf

 
 
 
Nerm_L
3.2.4  Nerm_L  replied to  Ender @3.2.3    4 weeks ago

From your cited source ( https://fas.org/sgp/crs/secrecy/LSB10201.pdf ):

"On April 5, 2019, the three-judge panel in McKeever ruled that federal courts lack “inherent authority” to authorize the disclosure of grand jury matters in circumstances not covered by an explicit exception set out in Rule 6(e) of the Federal Rules of Criminal Procedure."

 
 
 
Ender
3.2.5  Ender  replied to  Nerm_L @3.2.4    4 weeks ago

It has been ruled on several ways. It also says 6e is not set in stone.

 
 
 
1stwarrior
4  1stwarrior    4 weeks ago

Looking at this from a different perspective, there are two things that are outta whack.

1. "The mob dragged them out, led them to the riverbank and shot them multiple times."

     Where's the lynching part?

2. "A historian's quest for the truth"

     Sorry - doesn't qualify under the "need to know" standards of judicial jurisdiction.  Historians do not get a special pass on gathering information without specific authorization and approval from the affected party.

Releasing information from Grand Juries in "No Bill" decisions is akin to allowing someone in the Intelligence Community to release any material that is considered/marked as Confidential and above.  There have been numerous cases contesting the requested release - one is noted in the thread/seed.

Rule 6(e)(3)(E) of the Federal Rule for Criminal Procedure provides in relevant part that the court “may authorize disclosure . . . of a grand-jury matter”

     (1) preliminarily to or in connection with a judicial proceeding;

     (2) to a defendant who shows grounds may exist to dismiss the indictment because of something that occurred before the grand jury; or

     (3) at the request of the government, to a foreign court or prosecutor or to an “appropriate” state, state-subdivision, Indian tribal, military, or foreign government official for the purpose of enforcing or investigating a violation of the respective jurisdiction’s criminal law. Persons seeking court authorization under one of these exceptions must make a “strong showing of particularized need” that “outweighs the public interest in secrecy.”

None of those exemptions apply to a "historian's" desire/want/need for confidential/classified/secret information.

Just my too scents.

 
 
 
Split Personality
4.1  Split Personality  replied to  1stwarrior @4    4 weeks ago
1. "The mob dragged them out, led them to the riverbank and shot them multiple times."      Where's the lynching part?

It's easier to spell lynching than vigilantism and everyone knows what it means figuratively, not literally.

 
 
 
jungkonservativ111
4.1.1  jungkonservativ111  replied to  Split Personality @4.1    4 weeks ago

Uh no, i noticed the same thing but didnt bother to bring it up because i figured it would take the conversation down a different path than the seeder intended. Lynching and shooting are far from the same thing and words like that do matter. Lynching is hanging someone and is usually linked with blantant racism. This was a shooting, and it sounds like there is more to the story than they shot them just for beong black. There is a reason the author chose to use the word lynching when there was clearly no lynching. 

 
 
 
Split Personality
4.1.2  Split Personality  replied to  jungkonservativ111 @4.1.1    4 weeks ago

Uh yes,

Lynching is a premeditated extrajudicial killing by a group. It is most often used to characterize informal public executions by a mob in order to punish an alleged transgressor, convicted transgressor, or to intimidate a group. It can also be an extreme form of informal group social control, and it is often conducted with the display of a public spectacle (often in the form of hanging) for maximum intimidation. [1] Instances of lynchings and similar mob violence can be found in every society. [2] [3] [4]

In the United States, lynchings of African Americans became frequent in the South during the period after the Reconstruction era into the 20th century. Lynchings are common in many contemporary societies, particularly in countries with high crime rates such as Brazil , Guatemala and South Africa .

https://en.wikipedia.org/wiki/Lynching

Since it's Wikipedia, feel free to edit their page to your likening.

These other definitions won't be so easy to edit.

Definition of lynch

transitive verb

: to put to death (as by hanging) by mob action without legal approval or permission The accused killer was lynched by an angry mob.

lynching

A lynching is an unlawful murder by an angry mob of people. Throughout history, dominant groups have used lynchings as a way of controlling minorities.

When people take the law into their own hands and decide to punish a suspected criminal — or merely a person who's seen as challenging the status quo — the result can unfortunately be a lynching. Lynchings have most often involved hanging, especially during the period of racially motivated lynchings in the American South. The word lynching and its related verb, lynch , come from Captain William Lynch, who took control of imposing and policing order in Virginia during the Revolutionary War.

https://www.vocabulary.com/dictionary/lynching

lynch

[ linch ]


verb (used with object)

to put to death, especially by hanging, by mob action and without legal authority.
 
 
 
Ender
4.2  Ender  replied to  1stwarrior @4    4 weeks ago
Where's the lynching part?

I kind of agree with you here. We all know what a lynching is. Just like I don't like them using it about trump.

They should call it what it was. An execution.

 
 
 
Perrie Halpern R.A.
5  seeder  Perrie Halpern R.A.    4 weeks ago
Looking at this from a different perspective, there are two things that are outta whack.

1. "The mob dragged them out, led them to the riverbank andshot themmultiple times."

     Where's the lynching part?

1st, I think he uses the word "lynching" as a metaphor since that term was used when people took justice into their own hands. It is not accurate to what actually happened, but these 4 men were killed by mob justice. 

2. "A historian's quest for the truth"      Sorry - doesn't qualify under the "need to know" standards of judicial jurisdiction.  Historians do not get a special pass on gathering information without specific authorization and approval from the affected party.

I think you misread the article. The author wrote the book, and the book opened the door for our legal system to take another look at the case. Information is always gathered from multiple sources, and books have been used before, to reopen a case. 

 
 
 
1stwarrior
5.1  1stwarrior  replied to  Perrie Halpern R.A. @5    4 weeks ago

Nope - didn't misread the article - just stating the law which is applicable to all Grand Jury investigations.

Reopening the case requires additional new information that could have swayed the GJ's testimony.  The author, Pitch, didn't offer new information so I don't know why the case was reopened.

 
 
 
Perrie Halpern R.A.
6  seeder  Perrie Halpern R.A.    4 weeks ago
Nope - didn't misread the article - just stating the law which is applicable to all Grand Jury investigations.

I realize that, but the whole purpose of this case is to reexamine if grand jury cases should be secret. Since the DA's office can bring up anyone to testify and ask them any question without rebuttal, the DA can either make a case or kill one and then bury it. Justice may not have been served. 

This case is far more about what we do with Grand Juries than the actual case. 

 
 
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