Friday, June 07, 2019

11th Circuit takes grand jury secrecy case en banc

Really interesting issue.  The panel summarized the issue as follows:
In 1946, a crowd of people in Walton County, Georgia gathered as two
African American couples were dragged from a car and shot multiple times.1
Many consider this event, known as the Moore’s Ford Lynching, to be the last
mass lynching in American history. Racial tensions in Georgia were high. African
American citizens were allowed to vote in a Georgia Democratic Party primary for
the first time that year.2 The murders occurred shortly after the primary and
immediately garnered national media attention. National outrage, including
condemnation from then Special Counsel to the NAACP Thurgood Marshall,
ultimately led President Harry Truman to order an FBI investigation. In late 1946,
a district court judge in Georgia convened a grand jury. But after sixteen days of
witness testimony, no one was ever charged. The case remains unsolved.
Over seven decades later, Anthony Pitch, an author and historian, petitioned
the Middle District of Georgia for an order unsealing the grand jury transcripts.
The district court granted his request. The government now appeals, arguing the
district court abused its discretion in unsealing the transcripts. After careful review
and with the benefit of oral argument, we affirm. 
 Politico covers the en banc grant:
A federal appeals court announced Tuesday that its full, 12-judge bench plans to revisit whether judges have the authority to disclose usually secret grand jury information in exceptional cases.
The Atlanta-based 11th Circuit Court of Appeals said it plans to take up, en banc, a case involving a historian’s request for access to records of a federal grand jury investigation into the 1946 lynching of two African-American couples in Walton County, Ga.
Legal disputes about access to grand jury information are drawing unusual attention at the moment because of a standoff between the House Judiciary Committee and Attorney General Bill Barr over access to various materials related to special counsel Robert Mueller’s Trump-Russia probe.
Part of that fight is a disagreement over whether lawmakers are entitled to see testimony and evidence that is typically kept secret because it was obtained by a grand jury.
The 11th Circuit’s brief order Tuesday wiped out the victory historian Anthony Pitch won in February, when a court panel voted 2-1, to uphold a lower-court order allowing disclosure of the records.
The Justice Department has steadfastly opposed disclosure in such cases, saying that judges can only permit release through six explicit exceptions to the grand jury secrecy rule. However, government lawyers did not seek en banc rehearing of the decision.
The court’s order Tuesday said an unidentified 11th Circuit judge acting on his or her own sought a vote on further review of the case. A majority of the court’s active judges agreed.
It’s unclear precisely what triggered the rehearing, but Pitch’s attorney, Joe Bell, told POLITICO he believes it may be some combination of factors including a heated dissent by a district court judge who sat on the 11th Circuit panel and a conflicting, 2-1 ruling issued in April by the D.C. Circuit on a similar case involving another author, Stuart McKeever. He has asked the full D.C. Circuit to rehear his case, and there was a sign last month that they might do so.
“I know it probably involves the McKeever decision and it might also be that everyone saw what’s going on with Mueller in Washington and they want to come out with some sort of united front,” Bell said.
Whatever the 11th Circuit ultimately does, it won’t iron out disagreements among courts on the issue.
Other appeals courts, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.


Anonymous said...

What's interesting is, not only did none of the parties ask for en banc review, but the dissent in the original 3 judge panel was panned by a visiting District Judge from Ohio.

Anonymous said...

The 11th will do anything to protect governmental interests.