by: Don Samuel
Law and history occasionally have a fickle relationship. Sometimes at war with each other, sometimes inseparable colleagues.
An important feature of law is precedent: the historical record of what a court has decided with regard to a similar or identical controversy. Courts abide by precedent not only because a lower court is bound to follow the principles, rules, and commands of prior court decisions, but also because it enables the public to know in advance, what is right and what is wrong. History informs our contemporary decisions.
Rarely, however, does an historical event other than a prior court opinion become the subject of a case.
Enter: Pitch v. USA, 17-15016 (11th Cir. 2020) (en banc), decided on March 27, 2020. The last and one of the most horrific mass lynchings in the United States occurred not far from Atlanta, at Ford’s Moore Landing near Walton and Oconee Counties nearly 75 years ago. Two African American couples were dragged from their cars and lynched. A grand jury in Athens heard testimony for several weeks. What did the witnesses at the grand jury reveal? Nobody was ever indicted.
Historians today are interested in the proceedings of that grand jury. One historian, the original Petitioner in this case (he died during the course of this litigation), asked the district court in Macon to release the grand jury transcripts. But Rule 6(e) of the Federal Rules of Criminal Procedure provides that all grand jury proceedings are secret and the transcripts are only to be released in certain specifically identified circumstances. Nevertheless, courts have occasionally held that historically significant events trump the grand jury secrecy rule.
The 104-page opinion in Pitch ultimately decides that the “historically significant” exception to Rule 6(e) has no legitimate historical basis and holds that the Ford’s Moore Lynching grand jury transcripts will forever remain a secret. Along the way, the Pitch court overruled its own precedent in another case (involving Congressman Alcee Hastings), ironically deciding that Rule 6(e)’s “historically significant” exception that was previously recognized in the Eleventh Circuit was an historical anomaly that needed to be revisited and abandoned. Erase that history from the books.
Wouldn’t we all like to know about the testimony that exists in the secret grand jury testimony that exists in the Mueller investigation of Russian interference in the 2016 election? What about the grand jury testimony in the Rosenberg espionage investigation in the 1950’s? Or Watergate? Or even Aaron Burr and John Wilkes Booth?