In a win for a New Jersey lawyer representing a historian in Georgia, a split appeals court upheld a judge who ordered unsealing the transcript of a grand jury tasked with investigating the lynching of two African-American couples in 1946.
A federal grand jury charged no one in the mob beatings and shooting deaths of George and Mae Murray Dorsey and Roger and Dorothy Dorsey Malcom at Moore’s Ford Bridge.
More than 70 years later, historian Anthony Pitch petitioned the U.S. District Court for the Middle District of Georgia in Macon to unseal the transcripts, and in 2017, Judge Marc Treadwell agreed.
Joseph J. Bell of Rockaway’s Bell & Shivas represented Pitch.
The U.S. Department of Justice appealed the ruling, and on Monday a panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed Treadwell’s ruling.
Government lawyers argued that he abused his discretion by basing his decision solely on the historical significance of the lynching, which drew the attention of President Harry Truman and is considered a precursor to the civil rights movement.
Bradley Hinshelwood of the Justice Department in Washington argued for the government. A DOJ spokesman said the department declined to comment.
Bell said they were “ecstatic” over the ruling, noting that Pitch first sought the records in 2014.
Bell—whose practice includes labor and employment law, county and municipal government, civil rights, criminal law, DUI/DWI and tort law—called the ruling “another brick in the emerging wall of justice.”
He said he came to represent Pitch, who has written a book on President Abraham Lincoln’s assassination, after they met in Washington while Bell was joining the bar to the U.S. Supreme Court.
In Monday’s ruling, Judges Charles Wilson and Adalberto Jordan held that Treadwell did not abuse his discretion, because the lynching case provided sufficient “exceptional circumstances” to override typical grand jury secrecy.
Wilson wrote for the majority that the case’s role in the civil rights movement and the passage of more than 70 years, among other factors, meant that it served as a historically significant exception to keeping the transcripts secret.
“There is no indication that any witnesses, suspects, or their immediate family members are alive to be intimidated, persecuted, or arrested,” Wilson wrote.
Visiting Judge James L. Graham of the Southern District of Ohio, sitting by designation, dissented, writing, “I believe 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 added that descendants of suspects or witnesses could suffer from the release of the transcript. “I am unable to dismiss the reputational harm that could occur to a living person if the grand jury transcripts reveal that their parent or grandparent 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,” Graham wrote.
Jordan concurred specially, noting that he would have decided differently the 1984 Eleventh Circuit case that set out the “exceptional circumstances” standard for unsealing grand jury records. He pointed out that federal judges rejected an effort by U.S. Attorney General Eric Holder in 2011 to change grand jury secrecy rules that would have established procedures surrounding unsealing grand jury records.