George Mason
Law Review

Breaking the Wall of Silence—Balancing Grand Jury Secrecy with Legitimacy and Transparency in Pitch v. United States

Winston Williams & Amy H. McCarthy
Volume 28
Issue 3


In July of 1946, a large group of unmasked White men armed with pistols and shotguns murdered four African Americans near Monroe, Georgia.1President’s Comm. on Civ. Rts., To Secure These Rights: The Report of the President’s Committee on Civil Rights 22 (1947). The bodies of Roger Malcolm, Dorothy Malcolm, George Dorsey—a World War II veteran—and Mae Dorsey were found near the Apalachee River in a place locally known as Moore’s Ford.2H.R. 477, 145th Gen. Assemb., 1st Reg. Sess. (Ga. 1999); President’s Comm. on Civ. Rts., supra note 1. This event, often referred to as the Moore’s Ford Lynching, is considered by some to be “the last mass lynching in American History.”3Pitch v. United States, 953 F.3d 1226, 1230 (11th Cir.) (en banc), cert. denied, 141 S. Ct. 624 (2020). At the time, this horrific crime received national attention and prompted President Harry S. Truman to order a complete investigation into the matter.4Richard Gergel, Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring 35 (2019). After nearly four months of investigation, a federal grand jury was convened. The grand jury heard three weeks of testimony but were “unable to establish the identity of any person or persons participating in the murders or in any violation of the Civil Rights statutes of the United States.”5Anthony S. Pitch, The Last Lynching: How a Gruesome Mass Murder Rocked a Small Georgia Town 127 (2016) (quoting the grand jury decision from Dec. 19, 1946). To date, no one has ever been indicted for this crime that was committed in broad daylight by an unmasked mob.6Kathy Lohr, FBI Re-Examines 1946 Lynching Case, NPR (July 25, 2006 7:26 PM),

While there have been multiple reopenings of this case, none have produced any new evidence, indictments, or charges.7See id. Yet the one stone left unturned in this search for answers is the sealed grand jury records. The late historian Anthony Pitch petitioned the US District Court for the Middle District of Georgia for the records in 2017.8In re Pitch, 275 F. Supp. 3d 1373, 1376 (M.D. Ga. 2017). The district court established that Mr. Pitch’s request did not fit within one of the exceptions listed in Rule 6(e) of the Federal Rules of Criminal Procedure.9See 1381–83. Nevertheless, it held that it possessed the “inherent authority” to release the grand jury transcripts.10Id. at 1378. The government appealed this case to the Eleventh Circuit Court of Appeals, which eventually reversed the district court’s holding after an en banc rehearing of the case.11Pitch v. United States, 915 F.3d 704 (11th Cir. 2019), rev’d en banc, 953 F.3d 1226 (11th Cir.), cert. denied, 141 S. Ct. 624 (2020).

The Eleventh Circuit’s majority opinion held that “Rule 6(e) by its plain terms limits disclosures of grand jury materials to the circumstances enumerated therein.”12Pitch, 953 F.3d at 1234. The court’s holding in Pitch v. United States13953 F.3d 1226 (11th Cir.) (en banc), cert. denied, 141 S. Ct. 624 (2020). is a departure from its own precedent set forth in In re Petition to Inspect and Copy Grand Jury Materials (Hastings).14735 F.2d 1261 (11th Cir. 1984). In Hastings, the court held that “a district court may, pursuant to its inherent, supervisory power over the grand jury, authorize the disclosure of grand jury records outside of Rule 6(e)’s enumerated exceptions in certain ‘exceptional circumstances.’”15Pitch, 953 F.3d at 1229 (quoting Hastings, 735 F.2d at 1268–69). The majority opinion in Pitch expressly overruled this prior decision and stated “[w]e now hold that Rule 6(e) is exhaustive, and that district courts do not possess inherent, supervisory power to authorize the disclosure of grand jury records outside of Rule 6(e)(3)’s enumerated exceptions.”16Id. While the Eleventh Circuit may have changed its approach to Rule 6(e) and the inherent, supervisory power of the district courts, there is a split among the circuit courts on this issue. The Second Circuit and the Seventh Circuit Courts of Appeals have both adopted the reasoning in Hastings.17Id. at 1251. Consequently, there is no consensus among the circuit courts of appeals regarding the inherent power of district courts to disclose grand jury records. In October 2020, the Supreme Court denied certiorari in Pitch, leaving this circuit split unresolved.18Pitch v. United States, 141 S. Ct. 624 (2020).

Rule 6(e), itself, does not contain any explicit exceptions that authorize disclosure of grand jury records based on historical significance and transparency. The lack of an adequate exception in Rule 6(e) and related lack of clarity on the inherent power of district courts are both problematic, particularly when considering the multiple cases in which courts allowed disclosure of grand jury records based on historical significance. These cases include grand jury records from the indictment of Julius and Ethel Rosenberg, President Nixon’s Watergate grand jury deposition testimony, and transcripts from the Alger Hiss grand jury proceedings.19Brief for Am. Hist. Ass’n, Am. Soc. for Legal Hist., Nat’l Security Archive, Org. of Am. Hists., and Soc. of Am. Archivists as Amici Curiae Supporting Petitioner at 4–5, Pitch v. United States, 953 F.3d 1226 (11th Cir. 2020) (en banc) (No. 17-15016). The decision to release grand jury transcripts in these cases underscores the influence that historical significance and transparency have had on disclosure decisions by federal district courts in circuits permitting disclosure. These cases also illustrate how the examination of historical grand jury records may provide a more complete picture of the underlying events at issue.20See discussion infra Part III.A. Thus, the majority decision in Pitch not only overrules its precedent to eliminate the district court’s inherent authority related to grand jury disclosures, it also stands in contrast to other cases where historical significance was the basis for disclosing grand jury records.

The troubling implications of Pitch and the split among the circuit courts demonstrate the need for clarity on the legal standard for the disclosure of grand jury records. Using the facts and circumstances of Pitch, this Article asserts that federal district courts should have the power to release grand jury records to meet the demands of transparency in historically significant cases. Part I of this Article establishes the historical context surrounding the grand jury proceedings that investigated the Moore’s Ford Lynching. Part II provides an overview of Rule 6(e) of the Federal Rules of Criminal Procedure. Part III establishes the need for transparency in historically significant civil rights cases. Part IV proposes a change to Rule 6(e) that would provide uniformity for the federal courts to follow when deciding to release grand jury records.

I.     Historical Context for the Moore’s Ford Grand Jury

Nearly five months after the lynching, a grand jury was convened in Athens, Georgia, which is roughly fifteen miles from Moore’s Ford. The historical context surrounding the selection and service of this grand jury reinforces the need for a change in the rules governing disclosure of grand jury proceedings. In the wake of the lynching, the social environment in Walton County was one of violence, fear, and intimidation. When the FBI arrived to begin its investigation, the agents confronted a population of White townspeople who were “tight-lipped and refused to cooperate.”21Pitch, supra note 5, at 62 (quoting the grand jury decision from Dec. 19, 1946). African Americans in the county distanced themselves from FBI agents, “fearing they might suffer the same fate as those found lifeless”22Id. at Moore’s Ford. One of the witnesses who testified, Lamar Howard, was violently beaten a few weeks after the grand jury’s decision, arguably validating these fears.23Id. at 133. During this horrendous act, the perpetrators asked Howard, “What did you tell them down in Athens[?]”24Id. Lamar Howard fled the area in fear for his life. Id. at 137. The attack on Lamar Howard underscores the grave consequences for individuals who assisted the investigation. This attack was troubling but not uncommon for Georgia or the South in 1946.

The murders at Moore’s Ford were but one of two lynchings that took place in Georgia during the summer of 1946. Maceo Snipes, a World War II veteran, was shot and mortally wounded in western Georgia a day after voting in the Democratic primary on July 18.25See Elliott Minor, Answers Sought in 1946 Ga. Killing, Wash. Post (Feb. 13, 2007, 7:09 AM), This was the first Democratic Primary after the US Supreme Court’s decision in Smith v. Allwright, 321 U.S. 649 (1944), which held that the Whites only Democratic Primary was unconstitutional. Id. at 665. He was the only African American who voted in his county.26Laura Wexler, Fire in a Canebrake: The Last Mass Lynching in America 51 (2003). Elsewhere in the South, there were two other lynchings—Leon McTatie in Mississippi on July 22, and John C. Jones in Louisiana on August 8.27Susan A. Glenn, “We Charge Genocide”: The 1951 Black Lives Matter Campaign, Univ. of Wash. Mapping Am. Soc. Movements Project, The violence in the summer of 1946 sparked national outrage with President Truman stating, “My God! I had no idea it was as terrible as that! We’ve got to do something!”28DeNeen L. Brown, How Harry S. Truman Went from Being a Racist to Desegregating the Military, Wash. Post (July 26, 2018, 7:00 AM),; see also Walter White, A Man Called White: The Autobiography of Walter White 331 (1948). President Truman took action and ordered an investigation of the Moore’s Ford Lynching. In addition, he established the President’s Commission on Civil Rights soon after the incident. Yet, inadequate legislation hampered the efforts of the President and the Department of Justice. President Truman identified this challenge in a statement accompanying his executive order where he stated,

Yet in its discharge of the obligations placed on it by the Constitution, the Federal Government is hampered by inadequate civil rights statutes. The protection of our democratic institutions and the enjoyment by the people of their rights under the Constitution require that these weak and inadequate statutes should be expanded and improved. We must provide the Department of Justice with the tools to do the job.29President’s Comm. on Civ. Rts., supra note 1. President Truman’s awareness of inadequate legislation is amplified by the fact that each time anti-lynching legislation was introduced while he served in the Senate, he voted for it. See Harry S. Truman, The President’s News Conference (Aug. 1, 1946), in American Presidency Project,

President Truman was not the only government official who recognized the challenge of investigating and prosecuting lynching cases. The FBI Director, J. Edgar Hoover, expressed a reluctance to pursue lynching cases.30See Pitch, supra note 5, at 117 (quoting Memorandum from J. Edgar Hoover, Dir., FBI, to Thomas Clark, Att’y Gen., US Dep’t of Just. (Dec. 17, 1946)). In reaction to the grand jury investigation of the Moore’s Ford lynching, he stated, “[T]he most sound finding which the current grand jury could make would be that the thorough and complete investigation by the FBI, as presented to the grand jury, fails to disclose any evidence of a violation of a federal statute.”31Id. at 127. At that time, the only way to trigger the application of federal law would be the participation of a state actor in the lynching. Because of the Supreme Court’s ruling in the Civil Rights Cases,32109 U.S. 3 (1883). legislation passed by Congress under the Fourteenth Amendment was limited in application to officials of the state. Thus, without evidence of the involvement of state officials, it would be difficult for the grand jury to render an indictment for a violation of federal law.

While the federal law might have limited the grand jury’s ability to indict private participants in the lynching, it did not place a legal limitation on the investigation itself. Federal grand juries serve two functions: “they aid federal prosecutors in investigating possible crimes by issuing subpoenas for documents, physical evidence, and witness testimony . . . and . . . they determine whether there is sufficient evidence to charge a criminal suspect with the crime or crimes under investigation.”33Michael A. Foster, Cong. Rsch. Serv., R45456, Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight 1 (2019). Yet, the thoroughness of the grand jury investigation is questionable given its failure to identify any of the participants in the mass lynching. The question becomes whether this failure was due to the limits of federal authority to indict private individuals or the reluctance of the local witnesses and jurors to assist in the grand jury investigations because of fear or cynicism. This question cannot be thoroughly explored without disclosing the proceedings of the grand jury.

II.     Rule 6(e) and Pitch

Rule 6(e) governs grand jury disclosure, providing several circumstances under which district courts may release them. However, a circuit split exists over whether courts maintain any inherent powers beyond Rule 6(e). Pitch, decided in the Eleventh Circuit, illustrates one side of the split.

A.     Grand Jury Secrecy and Rule 6(e)

The mandate of grand jury secrecy in the American justice system can be traced back to a historical tradition in England.34See Mark Kadish, Behind the Locked Door of an American Grand Jury: Its History, Its Secrecy, and Its Process, 24 Fla. St. U. L. Rev. 1, 5–16 (1996) (tracing the history of grand jury secrecy from England through early America). Since colonial times, in fact, grand jury participants have been required to maintain secrecy regarding proceedings.35See id. Developed in England as a tool to protect individuals from the abuses of the crown, grand jury secrecy took on new purposes under American common law.36Richard M. Calkins, Grand Jury Secrecy, 63 Mich. L. Rev. 455, 457–59 (1965). The Earl of Shaftesbury Trial, 8 How. St. Tr. 759 (1681), is an important early example of grand jury secrecy in England. There, the grand jury itself demanded secrecy in interviewing witnesses during a treason case, in an attempt to avoid the oppressive influences of the Crown. Id. at 457. Those expanded justifications included: protecting the opinions of jurors; promoting the uninhibited testimony of witnesses; preventing misconduct by the defendant, including escape and witness and juror tampering; shielding the innocent accused; and limiting the prejudice of the future trial jury pool.37See id. at 458–59; Kadish, supra note 34, at 19. But even in the early days of the Republic, courts acknowledged exceptions to this general secrecy rule.38See Kadish, supra note 34, at 16–17 (citing an 1806 case where a court in New York indicated that grand jury secrecy may be breached in a challenge alleging an improper indictment). Courts balanced additional factors in considering whether the grand jury secrecy presumption should be overcome in certain cases, including protecting the defendant’s interest in fairness.39See id. at 16–22 (summarizing various cases prior to 1946 that articulated these considerations).

In 1946, the Supreme Court established the Federal Rules of Criminal Procedure.40Id. at 23. Specifically, Rule 6 of the Federal Rules of Criminal Procedure codified the traditional institution of grand jury secrecy.41See Fed. R. Crim. P. 6(e). Rule 6(e) allows disclosure of grand jury materials, other than records of deliberations or individual juror votes, to government attorneys and other officials for limited purposes.42See id. 6(e)(3). The rule then lists circumstances under which a federal district court may release grand jury matters:

The court may authorize disclosure—at a time, in a manner, and subject to any other conditions that it directs—of a grand-jury matter:

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

(ii)     at the request of a defendant who shows that a ground may exist to dismiss the indictment because of a matter that occurred before the grand jury;

(iii)     at the request of the government, when sought by a foreign court or prosecutor for use in an official criminal investigation;

(iv)     at the request of the government if it shows that the matter may disclose a violation of State, Indian tribal, or foreign criminal law, as long as the disclosure is to an appropriate state, state subdivision, Indian tribal, or foreign government official for the purpose of enforcing that law; or

(v)     at the request of the government if it shows that the matter may disclose a violation of military criminal law under the Uniform Code of Military Justice, as long as the disclosure is to an appropriate military official for the purpose of enforcing that law.43 6(e)(3)(E).

The rule does not directly state, however, whether a district court may unseal grand jury records in situations not specifically provided for in the rule. Federal circuit courts of appeals have split over the issue. In Hastings, the Eleventh Circuit held that district courts may disclose grand jury records under their inherent powers in “exceptional circumstances” that fell beyond the enumerated list in Rule 6(e).44In re Petition to Inspect & Copy Grand Jury Materials (Hastings), 735 F.2d 1261, 1269 (11th Cir. 1984). In Hastings, the district court had ordered the unsealing of grand jury matters related to the misconduct of District Judge Alcee Hastings for use in a disciplinary action for alleged violations of the Code of Judicial Conduct.45Id. at 1263. The Eleventh Circuit explained that the list of exceptions in Rule 6(e) “were not intended to ossify the law, but rather are subject to development by the courts in conformance with the rule’s general rule of secrecy.”46Id. at 1269 (citing Fallen v. United States, 378 U.S. 139, 142 (1964)). Therefore, the express exceptions were not limiting to the district court, and it had the lawful authority to disclose the records.47See id.

B.     Grand Jury Secrecy and Pitch

In response to Anthony Pitch’s request, the District Court for the Middle District of Georgia ordered the release of the Moore’s Ford lynching grand jury records under the precedent of Hastings.48In re Pitch, 275 F. Supp. 3d 1373, 1383 (M.D. Ga. 2017). The court found that the historical significance of the Moore’s Ford lynching case amounted to an “exceptional circumstance[],” which justified the release of the records under its inherent authority.49Id. In a panel decision, the Eleventh Circuit upheld the district court’s release of the grand jury records as valid.50Pitch v. United States, 915 F.3d 704, 713 (11th Cir. 2019), rev’d en banc, 953 F.3d 1226 (11th Cir.), cert. denied, 141 S. Ct. 624 (2020). In calculating whether the case amounted to an exceptional historical circumstance justifying release of the records, the Eleventh Circuit panel balanced the public interest in grand jury secrecy against the historical interests in disclosure.51See id. at 709–10.

In a rehearing of the case however, the Eleventh Circuit, sitting en banc, reversed the previous panel decision.52Pitch v. United States, 953 F.3d 1226, 1241 (11th Cir.) (en banc), cert. denied, 141 S. Ct. 624 (2020). The court held that the list of circumstances in Rule 6(e) was exhaustive, and district courts lacked an inherent power to order the disclosure of grand jury records in other cases, overturning the contrary prior holding in Hastings.53See id. at 1234. The court first gave a cursory summary of the Moore’s Ford lynching incident.54See id. at 1230. It then began its legal analysis by outlining the purposes of grand jury secrecy as stated previously by the Supreme Court:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.55Id. at 1232 (quoting Douglas Oil Co. v. Petrol Stops Nw., 441 U.S. 211, 219 n.10 (1979)); see also United States v. Procter & Gamble Co., 356 U.S. 677, 681–82 n.6 (1958) (quoting United States v. Rose, 215 F.2d 617, 628–29 (3rd Cir. 1958)).

In view of these prevailing interests, the court noted that both the Supreme Court and Congress have persistently defended the institution of grand jury secrecy.56See Pitch, 953 F.3d at 1232. “The Supreme Court has long ‘recognized that the proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings.’”57Id. at 1232 (quoting Douglas Oil Co., 441 U.S. at 218). In construing the meaning of Rule 6(e), the court found no evidence that the drafters intended for grand jury records to be released in any situations other than those expressly listed.58See id. at 1235. In fact, the opposite was true according to the majority: based on the wording of the rule, the drafters did not intend for courts to have the authority to release grand jury records outside of the auspices of one of the enumerated provisions.59See id. at 1234 (noting that the phrase “[u]nless these rules provide otherwise” in Rule 6(e) specifically excludes the possibility that courts have the power to release grand jury records on their own accord (alteration in original)).

The court rejected arguments by Pitch’s attorney that the obligation of secrecy in Rule 6(e) did not attach to the district courts themselves, only to persons specifically mentioned in the rule.60Id. at 1237. The rule specifically includes grand jurors, interpreters, court reporters, operators of recorders, persons who transcribe testimony, attorneys for the government, and other governmental personnel who receive information about the grand jury. Id. (citing Fed. R. Crim. P. 6(e)(2)(B)). The court found that argument unpersuasive, as it ignored the fact that district courts themselves are not participants in grand jury proceedings, which makes their absence within the list understandable. See id. It also found the argument that the rule itself allowed discretion on behalf of district courts in releasing grand jury matters unpersuasive.61See id. at 1237–38. The court stated that the discretion at issue pertained to a court’s decision to release records under the enumerated provisions in 6(e), not to some other inherent disclosure power.62See Pitch, 953 F.3d at 1238.

Dissenting in the case, three judges called the majority’s holding both “anti-textual and anti-historical.”63Id. at 1258 (Wilson, J., dissenting). Specifically, the dissenters interpreted the rule as not intending to abolish district courts’ preexisting common law authority to release grand jury records.64See id. at 1258–59. The dissent also noted that the Rules Committee itself had expressed a belief that Rule 6(e) did not, in fact, limit the ability of district courts to exercise an inherent power of grand jury record disclosure.65Id. This point was based on the Committee’s reaction to a proposal by the Obama administration years before.

In 2011, Attorney General Eric Holder sent a proposal to the Rules Committee recommending an amendment to Rule 6(e) to allow district courts to disclose grand jury records having great historical significance.66Letter from Eric Holder, Att’y Gen., U.S. Dep’t of Just., to Judge Reena Raggi, Chair, Jud. Conf. of the U.S. Advisory Comm. on Crim. Rules 5 (Oct. 18, 2011), In the opinion of Attorney General Holder, federal circuits, which had allowed disclosure under the inherent authority of district courts had violated the general rule put forth by the Supreme Court that no federal court had the ability to circumvent the Federal Rules of Criminal Procedure.67See id. at 4. However, the memo acknowledged the “public’s legitimate interest in gaining access to records that may cast new light on important people and events in American history,” while continuing to balance strong interests in grand jury secrecy.68Id. at 5. Specifically, the memo proposed that a rule allowing district courts the authority to release records, which have “permanent historical value” and are in the possession of the National Archives and Records Administration (“NARA”).69Id. at 6 (defining records of a “permanent historical value” as those falling under Title 44 of the U.S. Code). The rule would allow district courts to release records at least thirty years old under a balancing test that would consider the historical significance of the records, as well as the interests of secrecy.70See id. For records more than seventy-five years old, the proposal would allow open public access, with guidelines congruent to other historical records retained by NARA.71See id. (noting that, after seventy-five years, the interests of jury secrecy would cease).

Upon receipt of the Holder memo, the Committee declined to revisit Rule 6(e), stating that doing so would be unnecessary since in cases “where disclosure of historically significant materials had been sought, district judges had reasonably resolved applications by reference to their inherent authority.”72Pitch v. United States, 953 F.3d 1226, 1258 (11th Cir.) (en banc) (Wilson, J., dissenting) (quoting Advisory Comm. on Crim. Rules, Minutes 7 (Apr. 22–23, 2012)), cert. denied, 141 S. Ct. 624 (2020). Despite this indication that the Rules Committee itself believed that district courts did possess the inherent authority to divulge such records, the Eleventh Circuit believed that fact was ultimately unpersuasive in terms of statutory interpretation of Rule 6(e).73See id. at 1254; see also id. at 1258 n.8 (stating that the comments do “demonstrate that learned minds—namely, judges and other legal professionals—also recognize that the inherent authority of district courts to relax grand jury secrecy is unaltered by Rule 6(e)”).

C.     Circuit Split Surrounding Rule 6(e)

Holding that district courts lack an inherent power to disclose grand jury records under exceptional circumstances, the Eleventh Circuit joined the Eighth Circuit and D.C. Circuit Courts of Appeals in similar decisions. In United States v. McDougal,74559 F.3d 837 (8th Cir. 2009). the Eighth Circuit Court of Appeals affirmed that, if a request to unseal grand jury records failed to fall under any of the enumerated categories in Rule 6(e), a district court could not authorize disclosure.75See id. at 841 (stating that an allegation that the records were sealed in error may also justify disclosure). The records at issue in McDougal pertained to a witness’s refusal to testify at the Whitewater grand jury proceedings.76See id.

In McKeever v. Barr,77920 F.3d 842 (D.C. Cir. 2019), cert. denied, 140 S. Ct. 597 (2020). the D.C. Circuit Court of Appeals affirmed the district court’s denial of a petition for disclosure of grand jury matters.78Id. at 844. The records at issue involved the 1957 indictment of a former FBI agent in connection with the disappearance of a Columbia University professor.79Id. at 843. Stuart McKeever, like Anthony Pitch, had requested the records as part of historical research for a book about the case.80See id. Similar to the Eighth Circuit, the D.C. Circuit held that district courts had no inherent authority to release grand jury records, and courts were limited in disclosure to the situations specifically listed in Rule 6(e).81See id. at 850. The court also rejected McKeever’s argument that the purposes of grand jury secrecy no longer pertained to the case because of the passage of time and deaths of witnesses. The court noted that privacy interests may persist after death, and that a ruling which allowed disclosure under this reasoning may have the effect of chilling future grand jury witness testimony. See id. at 849.

On the other hand, the Pitch decision also stands in opposition to the holdings of other circuits, notably the Seventh Circuit and Second Circuit Courts of Appeals. In Carlson v. United States,82837 F.3d 753 (7th Cir. 2016). the Seventh Circuit Court of Appeals stated that courts have traditionally exerted an inherent, supervisory power to determine whether grand jury records should remain secret.83Id. at 755–56. According to the court, this power was established by the Supreme Court before the creation of the Federal Rules of Criminal Procedure and survived the adoption of those rules.84See id. at 762 (citing United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233–34 (1940)). Therefore, Rule 6(e) is permissive, not exclusive, and the court affirmed the district court’s release of the grand jury records as a proper use of its inherent authority.85Id. at 763. The records at issue in Carlson involved a 1942 investigation into the Chicago Tribune for printing a story revealing that the US military had deciphered Japanese codes.86Id. at 756. Similar to McKeever and Pitch, the petitioner was an author who sought the historical materials in writing a book.87See id. at 757.

In In re Petition of Craig,88131 F.3d 99 (2d Cir. 1997). a doctoral student sought records relating to the 1948 grand jury proceeding against Harry Dexter White, a former Assistant Secretary of the Treasury accused of being a communist spy.89Id. at 101. The Second Circuit Court of Appeals affirmed the district court’s holding that it did have the inherent authority to release grand jury records in special circumstances outside of the specific provisions of Rule 6(e).90Id. at 102. It also upheld the ruling that, despite the district court’s inherent power, such special circumstances were not present in the case and did not justify the release of the records.91Id. at 107. The court was careful to note that it was possible that historical interest alone could meet the requirements of “special circumstances.”92See id. at 105. Helpfully, the Craig court offered a list of factors for district courts to consider in using the inherent power to release grand jury records:

(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.93Id. at 106.

Several district courts have since used the Craig factors in considering whether to release important historical grand jury records under their inherent power.94See, e.g., In re Petition of Tabac, No. 3:08-mc-0243, 2009 WL 5213717, at *1 (M.D. Tenn. Apr. 14, 2009); In re Petition of Am. Hist. Ass’n, 49 F. Supp. 2d 274, 284 (S.D.N.Y. 1999).

In January 2020, the Supreme Court denied certiorari in the D.C. Circuit’s McKeever case, indicating an unwillingness to resolve the circuit split surrounding Rule 6(e) and the inherent power of district courts to release grand jury records.95See McKeever v. Barr, 140 S. Ct. 597 (2020) (denying certiorari). In a statement respecting the denial of certiorari, Justice Breyer called the legal question at issue an “important” one, which the Committee “can and should revisit.”96Id. at 598 (Breyer, J., statement respecting denial of certiorari). In October 2020, the Court denied certiorari in Pitch.97Pitch v. United States, 141 S. Ct. 624 (2020).

III.     The Need for Transparency in Historical Civil Rights Cases

The examination of historical grand jury matters would help deepen our understanding of important past events and increase transparency in the federal criminal justice system overall. Access to these materials may ultimately provide insight to modern policy issues surrounding race and the law.

A.     The Value of Reexamining the Past

The current circuit split over the inherent power of federal district courts to release grand jury matters results in an inconsistent ability to access important historical records. In an amicus brief to the Eleventh Circuit in Pitch, the American Historical Association and other interested organizations listed various important cases in which grand jury matters had been released, including records related to the indictment of Julius and Ethel Rosenberg, President Nixon’s testimony in the Watergate case, and those related to the Alger Hiss and Jimmy Hoffa cases.98Brief for Am. Hist. Ass’n et al., supra note 19, at 4–5. The brief was submitted on behalf of the American Historical Association, American Society for Legal History, National Security Archive, Organization of American Historians, and Society of American Archivists. Id. at 1; see also Brief for The Reporters Comm. for Freedom of the Press and 30 Media Orgs. as Amici Curiae Supporting Petitioner at 12–18, Pitch v. United States, 953 F.3d 1226 (11th Cir. 2020) (en banc) (No. 17-15016) (explaining the importance of accessing historical grand jury records for news media purposes). The amici went on to state that “there is no doubt that the release of these materials has contributed greatly to the historical record of significant events in our country’s history.”99Brief for Am. Hist. Ass’n et al., supra note 19, at 5, 20–23. For example, the unsealed matters in the Rosenberg case showed that a key grand jury witness changed their testimony later at trial, suggesting prosecutors knew such testimony was false. Id. at 21. Additionally, records revealed that two witnesses in the Hiss case contradicted another key witness, Whitaker Chambers. Id. at 22. The amici also state that there “is no evidence that the disclosures resulting from this line of cases have negatively affected the grand jury process.” Id. at 5. Investigation into these historical matters may provide insight into the judicial system broadly and the institution of the federal grand jury more specifically.100See id. at 20–21 (describing the scrutiny of historical grand jury records as an examination of the judicial process).

The disparity in access is particularly troubling in terms of lack of visibility in important historical race-related cases.101For a historical chronicling of the mistreatment of Black Americans in the criminal justice system, see Randall Kennedy, Race, Crime, and the Law (1997). Civil rights violations may be prosecuted under a variety of federal laws.102See, e.g., 18 U.S.C. § 241 (titled “Conspiracy against rights”); 18 U.S.C. § 242 (titled “Deprivation of rights under color of law”); 18 U.S.C. § 245 (titled “Federally protected activities”); 18 U.S.C. § 247 (titled “Damage to religious property; obstruction of persons in the free exercise of religious beliefs”); 18 U.S.C. § 249 (titled “Hate crime acts”); 42 U.S.C. § 3631 (regarding criminal interference with right to fair housing). For an overview of these statutes, see Alison M. Smith, Cong. Rsch. Serv., R43830, Overview of Selected Federal Criminal Civil Rights Statutes (2014). For a historical examination of predecessor federal civil rights laws, and their treatment by the Supreme Court, see Jack M. Beermann, The Unhappy History of Civil Rights Legislation, Fifty Years Later, 34 Conn. L. Rev. 981 (2002) (continuing the examination of federal civil rights legislation through the end of the twentieth century), and Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323 (1952). In cases where no true bill is returned, no further judicial record may exist to support the historical record. The examination of these cases may help uncover important truths—those pertaining to the individual cases but also those in relation to the social and political realities of that era.

In Cleansing Moments and Retrospective Justice, Professor Margaret Russell explores the value of reopening 1960s civil rights era cases, including the murders of Medgar Evers, the Sixteenth Street Church bombing victims, and the “Mississippi Burning” of civil rights workers James Chaney, Michael Schwerner, and Andrew Goodman.103SeeMargaret M. Russell, Cleansing Moments and Retrospective Justice, 101 Mich. L. Rev. 1225, 1226 (2003). In addition to the individual legal accountability that may be achieved in such cases, Russell explains that the cases deserve to be examined for the benefit of greater society.104See id. at 1227. These benefits include exposing both individual and governmental malfeasance.105See id. at 1247, 1249–55. Russell writes that “the history of failed or unfiled murder prosecutions in these cases—despite strong evidence pointing toward the culpability of public and private actors—magnifies the need to ‘correct the record’ so that the legitimacy of the legal system itself is not further undermined.”106Id. at 1247. Correcting the record both strengthens the rule of law and honors the lives lost in these horrifically violent cases.107See id. at 1253, 1255. Finally, Russell notes that reopening these cases may have the effect of helping to facilitate racial healing within communities.108Id. at 1261. Russell quotes Harlon Dalton’s definition of racial healing: “[C]andidly confronting the past, expressing genuine regret, carefully appraising the present in light of the past, agreeing to repair that which can be repaired, accepting joint responsibility for the future, and refusing to be derailed by setbacks and short-term failure.” Id. (quoting Harlon L. Dalton, Racial Healing: Confronting the Fear Between Blacks and Whites 100 (1995)). This historical reckoning is ultimately relevant to current day discussions about race, law, and public policy. She writes that “reopening also represents an acknowledgement that coming to terms with the past is necessary for racial progress. Public scrutiny can in turn lead to recognition of the long-term harms—psychological, economic, legal, and political—inflicted by the reign of supremacist terror.”109Russell,supra note 103, at 1262.

Russell explores cases from the 1960s, but many of her arguments can apply to scrutinizing earlier cases in which, because of the passage of time, perpetrators can never formally be brought to justice. Although examining the grand jury records in the Moore’s Ford lynching case could not assist in achieving formal legal prosecution of the murderers, the truth-seeking benefits of such efforts would still apply.110See id. at 1248 (discussing the dichotomy between justice and truth). In proposing truth-commission-style proceedings for past civil rights cases and noting the personal narratives that would be disclosed as a result, she writes: “In addition to serving as valuable histories of the civil rights movement, these narratives could provide the bases for curricular reform in primary and secondary education, legislative proposals, and other policy initiatives.” Id. at 1266; see also Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (1998) (examining attempts to achieve justice and healing after mass atrocities through processes, including criminal prosecutions and truth commissions). Russell draws on Minow’s research in discussing the value of uncovering historical truths. See Russell, supra note 103, at 1248, 1253–62; see also Ariela Gross, When Is the Time of Slavery? The History of Slavery in Contemporary Legal and Political Argument, 96 Calif. L. Rev. 283 (2008) (explaining the importance of understanding the history of slavery to debates involving contemporary legal and political issues). Gross writes that the “historicist approach does not necessitate a focus on individual perpetrators and victims of harm; it may go hand in hand with structural explanations for injustice that require structural remedies.” Id. at 286. An examination into the grand jury matters, including witness testimony and statements by public officials, could help to “correct the record” in the case and help to identify individual and governmental malfeasance, as well as identify pertinent social and political influences that may have played a role in the outcome. These benefits may be particularly meaningful against the backdrop of continued race-based violence in the United States today. Another important case of that time illustrates the value of such a historical inquiry.

In 1946, the same year as the Moore’s Ford lynching incident, racial tensions erupted in the town of Columbia, Tennessee. What began as a dispute over the sale of a radio between a White business owner and Black customer and her son, later escalated into a full-scale race riot.111See Gail Williams O’Brien, The Color of the Law: Race, Violence, and Justice in the Post-World War II South 7–33 (1999). Violence between Black and White townspeople was followed by the use of force and indiscriminate property damage by law enforcement upon the Black community.112See id. Over 100 Black citizens were arrested.113Id. at 29. At the urging of The National Association for the Advancement of Colored People (“NAACP”) and others, the federal government convened a grand jury to examine the actions of law enforcement officers during the incident.114See id. at 34–39. However, no indictment was issued.115See id. at 38.

Over forty years later, historian Gail Williams O’Brien sought the release of the grand jury matters related to the Columbia race riots. In an unpublished opinion, the District Court for the Middle District of Tennessee ordered their release.116In re Petition of O’Brien, No. 3-90-X-95 (M.D. Tenn. May 16, 1990) (unpublished opinion). Information gathered from the grand jury records is featured prominently in O’Brien’s book, The Color of Law: Race, Violence, and Justice in the Post-World War II South.117O’Brien, supra note 111. The records gave insight into multiple issues surrounding the Columbia race riot, including the likely unjust motivations of local and federal law enforcement officials who testified.118See id. at 186–91, 192–95 (describing the testimony of Sherriff J.J. Underwood and State Guard Commander Jacob Dickinson and likely influences on that testimony, as well as examining the testimony of FBI agent W.E. Hopton). O’Brien also offered compelling descriptions of the bias exhibited by US Attorneys and a federal judge during the proceedings.119For example, US Attorney A. Otis Denning consistently used the derogatory term “darkies” to refer to Black persons during the grand jury proceeding. Id. at 201. This is just one example of many in the grand jury record which helped to illuminate the agenda of government officials and resulting effects on the case. See id. at 199–211. Although these events occurred decades ago in a single case, the scrutiny of the grand jury record helps to shed light on larger and more widespread issues of the time, including the role of local loyalties and national prejudices in the administration of justice.120Id. at 211. The disclosure of grand jury records in the Columbia race riot case has since been used as a persuasive example to argue for the release of historical grand jury records in other cases.121See, e.g., Memorandum in Support of Petition for Order Directing Release of Minutes of Special Federal Grand Jury Convened in 1950-1951 that Pertain to the Indictment and Conviction of Julius and Ethel Rosenberg, at 39–40, In re Petition of National Security Archive, 104 F. Supp. 3d 625 (S.D.N.Y. 2015) (No. 1:08-cv-6599). The race riot grand jury records provided information necessary for the publication of the most thorough account of the Columbia, Tennessee race riots and of the federal grand jury proceedings that resulted in no indictments for civil rights violations. The grand jury records provided a substantial amount of the factual information used to develop a clear picture of the events themselves, and the records also allowed the historian to analyze the surprising and, in her view, blatantly unjust outcome of the federal grand jury. Id. at 40 (citing O’Brien, supra note 111).

B.     Race and Federal Grand Juries

Grand juries have traditionally fulfilled several important functions in the justice system, to include serving as a shield against unwarranted prosecutions and acting as an investigative body.122Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 262–63 (1995). The Fifth Amendment states that “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger . . . .” U.S. Const. amend. V. “Infamous” crimes includes all felonies. See Stirone v. United States, 361 U.S. 212, 215 (1960). The Fifth Amendment grand jury requirement has not been incorporated against the states through the Fourteenth Amendment. Hurtado v. California, 110 U.S. 516, 534–35 (1884). Many states, however, have developed their own grand jury systems. Peter W. Sperlich & Martin Jaspovice, Grand Juries, Grand Jurors and the Constitution, 1 Hastings Const. L.Q. 63, 63 (1974). African-American representation on federal grand juries, however, has historically been suppressed through a combination of legal interpretation and discretion by officials. In 1879, Congress passed the Jury Selection Act, which prohibited discrimination in the selection of grand jurors on the basis of race.123“That no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit juror in any court of the United States on account of race, color, or previous condition of servitude.” Jury Selection Act of 1879, ch. 52, § 2, 21 Stat. 43. This Act formally affirmed that Blacks were entitled to sit on both federal and state grand and petit juries, as had been stated previously in the 1875 Civil Rights Act. See Benno C. Schmidt, Jr., Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia, 61 Tex. L. Rev. 1401, 1453–54 (1983). However, another provision within the law mandated that local jury commissioners help select grand jurors, or alternatively that the federal court draw on local juror rolls in selecting federal grand jurors.124Schmidt, supra note 123, at 1452–53 (citing Jury Selection Act of 1879, ch. 52, § 2, 21 Stat. 43 (1879)).

The use of local officials in the selection of federal juries ultimately thwarted the antidiscrimination provisions of the juror selection law. One of the contributing causes of the exclusion of Blacks from grand juries was the use of the key-man system for selecting grand jury pools. The key-man system was the most widely used method of selecting grand jury pools for federal grand juries prior to 1968.125See Kennedy, supra note 101, at 181; Walter Pettus Gewin, The Jury Selection and Service Act of 1968: Implementation in the Fifth Circuit Court of Appeals, 20 Mercer L. Rev. 349, 354 (1969). This system involved “leading citizens of the community, such as alderman, bankers, and ministers, submit[ting] lists of prospective jurors to jury commissioners.”126Kennedy, supra note 101, at 180. The key-man system was highly criticized for many reasons, as Professor Randall Kennedy points out. In his book Race, Crime, and the Law, he writes,

First, the key-man system has a baleful history in many locales. It has often been used as a device to exclude people illicitly from the jury box. Second, the subjectivity of the criteria used by the arbiters of key-man systems invites abuse. Third, the legitimate aims of a key-man system can be obtained by procedures less vulnerable to invidious manipulation.127Id. at 184.

These local practices,128See Schmidt, supra note 123, at 1452–53. Discrimination against Blacks in both local discretionary jury picking and in eligibility to be on jury rolls in the southern states was rampant despite the protections of the Fourteenth Amendment. See Tanya E. Coke, Lady Justice May Be Blind, but Is She a Soul Sister? Race-Neutrality and the Ideal of Representative Juries, 69 N.Y.U. L. Rev. 327, 334–35 (1994) (exploring the ways states systematically excluded Blacks from jury service including through poll taxes and discretionary registration systems). in addition to the weakening effects of subsequent Supreme Court decisions,129See Schmidt, supra note 123, at 1455–72. had the effect of nullifying the antidiscrimination provision in the Jury Selection Act and resulting in low levels of African American grand juror participation.130See id. at 1452–53. For example, examination of the racial composition of federal grand juries in Louisiana showed that following the passage of the 1879 Jury Selection Act, grand jury service was virtually closed off for African Americans. Id. at 1453 (citing Drew L. Kershen, The Jury Selection Act of 1879:Theory and Practice of Citizen Participation in the Judicial System, 1980 U. Ill. L.F. 707, 762–65 (1980)); see also Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the United States, 61 U. Chi. L. Rev. 867, 893–95 (1994) (discussing systematic exclusion of Blacks from both state and federal juries after the passage of the Jury Selection Act). For many years, Blacks were excluded from both petit and grand juries to an extraordinary degree, particularly in the South, resulting in countless legal injustices.131See Schmidt, supra note 123, at 1406–14 (noting that “the federal and state court reports are filled with cases in which black defendants protested to no avail against the unfairness of all-white grand and petit juries”). Of course, Blacks were subjugated by the justice system in a myriad of ways. See, e.g., id. at 1407–08.

Federal courts continued to select jurors under this statutory framework until 1968.132Alschuler & Deiss, supranote 130, at 894. That year, Congress passed the Jury Selection and Service Act, which requires that potential grand jurors be drawn at random from a “master jury wheel” of voters within that federal district.133See Jury Selection and Service Act of 1968, Pub. L. 90-274, 82 Stat. 53, 54 (codified as amended at 28 U.S.C. § 1861). The law dictates that federal jurors be selected “from a fair cross section of the community.”134Id. § 1861. Although these changes have resulted in much more inclusive juries, federal jurors may still not adequately reflect a true cross section of the community in terms of racial diversity.135See generally Nancy Gertner, 12 Angry Men (and Women) in Federal Court, 82 Chi.-Kent L. Rev. 613 (2007) (exploring the reasons for inadequate representation of racial minorities on federal juries, including the wide geographic coverage of district courts and the compiling of juror source lists).

The equitable functioning of grand juries constitutes an important issue of legitimacy in the criminal justice system.136Kevin K. Washburn, Restoring the Grand Jury, 76 Fordham L. Rev. 2333, 2347–49 (2008). The scrutiny of historical grand jury records, particularly in civil rights-related cases, may be relevant to modern day debates surrounding grand jury reform, including the racial and socioeconomic composition of juries.137See id. at 2378–83 (proposing reforms to grand jury selection based on community participation). Access to these records may also help to explore the historical role of prosecutorial discretion in racial inequality in the criminal justice process and proposals for relevant policy change.138See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev. 13, 17, 22–23 (1998) (explaining that the grand jury proceeding is largely in the hands of prosecutors, and the “profound” role of prosecutorial discretion in fostering racial inequality in the criminal justice system).

Access to these records and increased visibility over these past cases may also help promote the legitimacy of the justice system. Procedural justice is the idea that procedures within the criminal justice system help to shape people’s opinions of the legitimacy of the law and of legal authorities.139Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 7 Ohio St. J. Crim. L. 307, 319 (2009). Tyler notes that studies “reinforce the finding that procedural justice is an important concern to members of minority groups.” Id. at 320. The effect was similar for both “users” of the criminal justice system and the larger public. See id. at 323. For a discussion on the meaning of legitimacy in this context, and the debate within the social sciences regarding this term, see Devon Johnson, Edward R. Maguire & Joseph B. Kuhns, Public Perceptions of the Legitimacy of the Law and Legal Authorities: Evidence from the Caribbean, 48 L. & Soc’y Rev. 947, 948–54 (2014). Transparent decision-making is a factor in procedural justice.140Tyler,supra note 139, at 319. In fact, studies indicate that transparency is an important component of people’s trust in the criminal justice system.141See generally Stephanos Bibas, Transparency and Participation in Criminal Procedure, 81 N.Y.U. L. Rev. 911 (2006). Bibas explains that the vast gulf in knowledge between criminal justice insiders—judges, attorneys, police—and outsiders—including victims and the general public—“impairs outsiders’ faith in the law’s legitimacy and trustworthiness.” Id. at 916. One aspect of “outsider” exclusion is the secrecy of grand jury proceedings. See id. at 923. Although historical civil rights-related cases were the result of justice systems far in the past, the withholding of historical truths by modern courts would seem to limit transparency as a whole and perhaps serves to foster distrust in the current justice system.142For an examination of the relative views on justice system legitimacy by racial demographic, see Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System, 73 Soc. Rsch. 445 (2006), and Sarah Geraghty & Melanie Velez, Bringing Transparency and Accountability to Criminal Justice Institutions in the South, 22 Stan. L. & Pol’y Rev. 455 (2011) (explaining the importance of transparency in the criminal justice system on checking institutional abuses and facilitating change).

IV.     Proposed Rule Change

The split among the federal circuit courts, resulting in an inconsistent practice of disclosing historical grand jury proceedings, demonstrates the need for change to meet the demands of transparency and legitimacy. The traditional concerns underlying grand jury secrecy in many older cases are no longer relevant. In fact, the government in Pitch failed to argue that disclosure of grand jury matters in previous historical cases had negatively impacted or undermined the institution of the grand jury, or otherwise affected jurors, accused persons, or prosecutors.143See Brief for Am. Hist. Ass’n et al., supra note 19, at 25. This is a notable point. As the Supreme Court itself stated in Douglas Oil Co. v. Petrol Stops Northwest,144441 U.S. 211 (1979). “as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury transcripts will have a lesser burden in showing justification.”145Id. at 223. Thus, any bar to disclosure should be based on the overall purposes of grand jury secrecy, which is primarily to protect the sanctity of the proceedings and the personnel involved.146See supra notes 55–57 and accompanying text.

Based on the Supreme Court’s recent denials of certiorari in Pitch and McKeever, it is unlikely that the Court will resolve the circuit split regarding the inherent authority of district courts to release historical grand jury records. Therefore, a change in the rule is needed. Although it appears that the Rules Committee previously believed that courts did, in fact, have such inherent authority and a change to the rule was unnecessary, the current circuit split should change this assessment.147See Pitch v. United States, 953 F.3d 1226, 1258 (11th Cir.) (en banc) (Wilson, J., dissenting) (quoting Advisory Comm. on Crim. Rules, Minutes 7 (Apr. 2012)), cert. denied, 141 S. Ct. 624 (2020). The proposed rule change would provide district courts with discretion to disclose grand jury proceeding while protecting the secrecy and sanctity of the grand jury institution. The following factors should inform a district court’s decision to unseal grand jury records: potential harm to jurors, witnesses, or innocent accused; historical significance; and potential harm to the grand jury process.

As discussed in Pitch, one of the key justifications for grand jury secrecy is the protection of the individuals involved in the process—jurors, witnesses, or innocent accused.148See id. at 1232 (quoting Douglas Oil, 441 U.S. at 219 n.10). Any decision to disclose grand jury proceedings should carefully consider the harm to these individuals. In many cases, the disclosure request will happen well after the grand jury has rendered its decision to indict or not indict. For example, Anthony Pitch submitted his request to unseal the Moore’s Ford Grand Jury transcripts nearly seventy years after the grand jury rendered its decision.149See id. at 1230. Many of the jurors, witnesses, and potential suspects had likely died by that time. Thus, it is difficult to assert that disclosure would cause any harm to the key participants in the grand jury. The second factor, historical significance, may, however, outweigh any minimal reputational harm.

Balancing the factors of historical significance with the harm to grand jury participants would bring consistency to district courts’ decisions to disclose grand jury proceedings and provide clarity to petitioners. Historical significance has been the basis for grand jury disclosures in the past, and courts were open to such disclosures. Although relative historical significance would constitute a subjective determination by judges, the circuits that have recognized inherent authority to release records illustrate that this assessment is feasible. In famous cases like the Julius and Ethel Rosenberg case, President Nixon’s Watergate grand jury deposition testimony, and transcripts from the Alger Hiss grand jury proceedings, the disclosure seemed to be routine.150See Brief for Am. Hist. Ass’n et al., supra note 19, at 4–5. Even though courts have relied on their inherent power to grant or deny requests for disclosures, the standard appears to be ill-defined. By establishing these two factors for the courts to balance, petitioners seeking disclosure would gain clarity on the reasons for approving or denying such requests. Cases like Pitch, where the timing of the disclosure would be well over seventy years after the grand jury closed, easily show that the historical significance outweighs the harm. However, this should not end the analysis because such a decision could impact future grand juries. Consequently, the third factor courts should consider when deciding to disclose grand jury transcripts is the harm to the grand jury process as a whole.

The harm to the grand jury process is a critical factor for the court to consider when making a disclosure decision. This factor is not an express purpose of grand jury secrecy, as it analyzes the impact on future grand jury proceedings. Nevertheless, judges need to consider such a factor for future grand juries to “encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes.”151See Pitch, 953 F.3d at 1232 (quoting Douglas Oil, 441 U.S. at 219 n.10). Even if the disclosure of historically significant grand jury records does not harm the participants, the disclosure could have a chilling effect on future grand jury participants. Therefore, courts should analyze the potential impact of their decision on future proceedings. While it would be difficult to predict how a court’s decision to disclose grand jury transcripts would impact future grand jury processes, the ultimate question to ask is whether the disclosure would impede the full and honest participation of a juror or a witness in future grand juries. This factor ultimately focuses on the sanctity of the grand jury, which operates under federal law and by order of the US District Courts.152See Foster, supra note 33, at 2.

Federal grand juries operate with sweeping authority to investigate possible violations of criminal law.153See id. Yet, their ability to continue to operate effectively hinges on the willingness of the participants and fair treatment of unindicted accused persons. Secrecy, therefore, is critical to the operation of the grand jury. However, the purpose of grand jury secrecy is not inviolable, as the passage of time could render the underlying justifications of secrecy irrelevant.154See Douglas Oil Co., 441 U.S. at 223. Consequently, balancing the competing demands of historical significance with harm to grand jury participants and harm to the process would satisfy the purpose and meet the demands for legitimacy and transparency.


James Baldwin once said that “[h]istory is not the past. It is the present. We carry our history with us. We are our history.”155James Baldwin, Black English: A Dishonest Argument (1980), in Black English and the Education of Black Children and Youth 54, 55 (Geneva Smitherman ed., 1981). These words resonate powerfully when one views the history of lynching in America. Almost three months after the Eleventh Circuit’s decision in Pitch, anti-lynching legislation failed in the Senate after passing in the House by a vote of 410–4.156Allison Pecorin, Emotional Senate Debate as Rand Paul Blocks Bill to Make Lynching a Federal Crime, ABC News (June 4, 2020, 7:12 PM),; see also Off. of the Clerk, United States House of Representatives, Roll Call 71, H.R. 35 (Feb. 26, 2020), (roll call vote on the Emmett Till Antilynching Act). This is another setback in the 100-year effort to pass antilynching legislation.157See, e.g., To Protect Citizens Against Lynching: Hearing on H.R. 11279 Before the H. Comm. on the Judiciary, 65th Cong. (1918). The bill was designed “to protect citizens of the United States against lynching.” 56 Cong. Rec. index at 198 (1918). This fact alone demonstrates the historical significance of the Moore’s Ford Lynching case and makes disclosure of the grand jury transcripts important to the ongoing effort to pass antilynching legislation. More generally, access to grand jury materials in historical civil rights cases may help shed light on important events and help inform current discussions regarding civil rights policy and criminal justice reform.

In Pitch, the Eleventh Circuit valued textualism over the general purposes of Rule 6 to break with the past practices and precedent related to grand jury disclosures.158See Pitch v. United States, 953 F.3d 1226, 1241 (11th Cir.) (en banc), cert. denied, 141 S. Ct. 624 (2020). A rule change should resolve this problematic holding and the greater circuit split surrounding the release of historically significant grand jury material. Without this change, Rule 6(e) of the Federal Rules of Criminal Procedure as interpreted by the Eleventh Circuit would be another brick in the wall of silence surrounding the last mass lynching in American history.

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