Enriching Our Nation's History: Establishing a Historical Exception to Grand Jury Secrecy

• Publication year: 2019
• Author: By Daniel Aronsohn*

ENRICHING OUR NATION'S HISTORY: ESTABLISHING A HISTORICAL EXCEPTION TO GRAND JURY SECRECY

By Daniel Aronsohn*

Introduction

The grand jury is indispensable in its role as the guardian against unwarranted prosecutions. But it is much more than that. The grand jury is a historical archive. As the mechanism for criminal indictment, the institution of the grand jury has confronted exceptional events of vast historical import. What occurs before a grand jury, however, is generally protected by a longstanding tradition of secrecy.¹ Under the general rule of secrecy, the public is unable to access grand jury materials regardless of the proffered reason.²

The inability to access grand jury information can be a considerable loss to society. With their expansive power to investigate and accuse, grand juries provide a wealth of information. It is essential that the public gain access to that information for two principal reasons. First, enhancing the historical record is paramount.³ Second, improving public access to grand jury information ensures transparency of the federal government, a valuable notion in democratic government. History can provide real-life insight into the successes of American government in addition to its missteps.

I. The Grand Jury & The Tradition of Secrecy

History of the Grand Jury

The grand jury is an institution dating back to the fourteenth century in England.⁴ Adopted by American colonists, the grand jury has served as the guardian against monarchy and guarantor of a fair criminal process. Matters occurring before the grand jury are generally secret⁵ and have been for hundreds of years.⁶ In the federal system, grand jury materials may remain undisclosed indefinitely.⁷ Secrecy is an affirmative obligation⁸ placed on seven classes of persons under Rule 6(e)(2)(B), including grand jurors, attorneys, and court reporters.⁹ Grand jury witnesses, however, are not sworn to secrecy.¹⁰ In its accompanying note, the Advisory Committee provides, "The seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate."¹¹

There are two secrecy interests that courts consistently propound as being those able to withstand the passage of time. The first is institutional integrity. Courts insist on the significance of "ensuring future grand jurors and grand jury witnesses will not be inhibited due to the possibility of subsequent disclosure of proceedings."¹² The grand jury's inquisitorial capacity depends upon its ability to call witnesses and establish a comprehensive understanding of the facts. Thus, there remains a vital interest in preserving the integrity of the grand jury materials to give future witnesses and grand jurors a sense of security in providing testimony or deliberating honestly and unreservedly.

The second ongoing interest is privacy of the individual, family, and friends.¹³ While citizens may have been part of a grand jury empaneled decades ago, the nature of the deliberations may still preserve the need for secrecy. For instance, a grand juror who helped to indict a well-connected criminal has a continuous interest in secrecy because of the potential dangers associated with identity disclosure. Alternatively, a witness who testified about a significant event may be subjected to constant media scrutiny if her name is released. And, lastly, privacy is invaluable for "protecti[ng] . . . the reputations and well-being of individuals who are subjects of grand jury proceedings, but who are never indicted."¹⁴

Disclosure Under the Federal Rules of Criminal Procedure

Courts willing to look beyond Rule 6(e) have adopted the "special circumstances" test of the Second Circuit¹⁵ in determining whether disclosure of grand jury materials is appropriate.¹⁶ The test provides a list of factors, known as the "Craig factors," for courts to consider as they balance the interests in secrecy with those in disclosure. The Craig factors are:

(i) the identity of the party seeking disclosure; (ii) whether the defendant to the grand jury proceeding or the government opposes the disclosure; (iii) why disclosure is being sought in the particular case; (iv) what specific information is being sought for disclosure; (v) how long ago the grand jury proceedings took place; (vi) the current status of the principals of the grand jury proceedings and that of their families; (vii) the extent to which the desired material—either permissibly or impermissibly—has been previously made public; (viii) whether witnesses to the grand jury proceedings who might be affected by disclosure are still alive; and (ix) the additional need for maintaining secrecy in the particular case in question.¹⁷

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II. When Historical Significance Has Compelled Disclosure

As the Second Circuit noted, "[i]t is . . . entirely conceivable that in some situations historical or public interest alone could justify the release of grand jury information."¹⁸

The Moore's Ford Lynching of 1946 1. Historical Significance

July 25, 1946, was a horrific day in American history. George Dorsey, Mae Murray Dorsey, Dorothy Dorsey Malcom,¹⁹ and Roger Malcom—four African-Americans— were brutally murdered by a mob of white townsmen near the Moore's Ford Bridge in Walton County, Georgia.²⁰ The two young couples were dragged from their car and beaten mercilessly.²¹ "The leader of the [Ku Klux] Klan had them line up, counted one, two, three, and everybody fired."²²

With the vehement support of then-NAACP attorney Thurgood Marshall,²³ President Harry Truman opened an FBI investigation into the incident and offered a $12,50 0²⁴ reward for information leading to a conviction.²⁵ But the people of Walton County had established a "code of silence."²⁶ Law enforcement remained quiet, as did the participants and observers of the lynching.²⁷ Even the black community was quiet because they were threatened with violence if they spoke up.²⁸ A grand jury was convened in 1946 to investigate the incident.²⁹ The grand jury is purported to have subpoenaed over 100 witnesses but returned no indictments in the end.³⁰ Over seventy years later, the murders remain unsolved.³¹

Said to be the "last mass lynching" in American history,³² the Moore's Ford Lynching remains a great source of intrigue not only for its mystery but also for its historical significance.³³ President Truman established the President's Committee on Civil Rights in response to the Moore's Ford Lynching. The lynching also implicates political strife and corruption, as it has been suggested that the lynching came in response to a recent state election.³⁴ Lastly, as a continually "polarizing event in the Civil Rights movement and debate,"³⁵ Moore's Ford Lynching can serve as a case study in political turmoil, race relations, and historical barbarity.

2. The Petition of Anthony Pitch

In 2017, reputable author and historian³⁶ Anthony S. Pitch petitioned a Georgia district court to unseal the transcripts of the 1946 Moore's Ford Lynching grand jury.³⁷ Pitch, who spent several years prior to the petition researching the lynching, aimed to "shed light on an extremely significant event in American history which remains surrounded in mystery and uncertainty."³⁸ Contrarily, the government opposed disclosure of the grand jury transcripts. The government argued that the district court, pursuant to Rule 6(e), could not disclose the transcripts.

Though the government elected not to argue its position under the Craig factors, the court used that analysis in its opinion.³⁹ In looking at interests relating to secrecy, the court recognized that there was "no reason particular to the Moore's Ford lynching to keep the grand jury records secret."⁴⁰ Because seventy years had passed since the impaneling of the grand jury, the sole interest in secrecy was to uphold integrity and tradition of the institution.⁴¹

With minimal interest in secrecy, the court recognized that the petitioner nonetheless had to establish a sufficient need for the disclosure.⁴² Militating in favor of the disclosure was the fact that the petitioner was a renowned historian who had "written many historical works, including a book on the Moore's Ford lynching."⁴³ The court further deemed Pitch's purposes for disclosure to be "legitimate and important"⁴⁴ because, as a historian, he desired the materials to ensure a replete historical record and foster academic debate. Lastly, and perhaps most importantly, the grand jury transcripts could materially add to a strikingly bare historical record that continues to garner immense public interest to this day.⁴⁵ The court reasoned that the information before the 1946 grand jury likely survives as the only way to learn what truly happened at Moore's Ford.⁴⁶ Accordingly, the court granted the petition.⁴⁷

The Battle of Midway & The Subsequent Press Leak 1. Historical Significance

Following the bombing at Pearl Harbor in 1941, the United States declared war on Japan⁴⁸ and thus became an active participant in World War II.⁴⁹ Six months later, the Japanese naval fleet prepared a strategic ambush of United States aircraft carriers to overtake position in the Pacific.⁵⁰ Unbeknownst to the Japanese military commanders, American code breakers cracked the Japanese code and expected the impending attack.⁵¹ In what historians describe as "the single most decisive aerial attack in naval history,"⁵² the United States military surprised the Japanese fleet with strategic force.⁵³ The victory was considered to be a significant turning point in World War II.⁵⁴

Upon the conclusion of the Battle of Midway, the Chicago Tribune published a front-page story titled "Navy Had Word of Jap Plan to Strike at Sea."⁵⁵ The story, which provided intricate details about the planned Japanese attack, suggested that United States intelligence had intercepted and deciphered the enemy codes.⁵⁶ President Franklin D. Roosevelt and other military leaders were furious about the leak.⁵⁷ The Chicago...