On Wednesday, October 3, 2018, in the Elbert P. Tuttle U. S. Court of Appeals in Atlanta, a panel of three appeals court judges grilled lawyers for both sides. They asked where lines should be drawn for the release of grand jury records and what potential harm could come from releasing the records. They also wanted to know if binding court precedent that says federal judges have the authority to order release of grand jury records should apply.
Department of Justice attorney Brad Hinshelwood argued that rules governing grand jury secrecy (i.e., Rule 6(e)) allow for exceptions but that Pitch’s request doesn’t meet them. Those rules can be changed, he said, but that should be done by policymaking bodies rather than the courts.
Hinshelwood also argued that people who appear before a grand jury might behave differently if they thought the records might one day be released. Joe Bell, Pitch’s lawyer, argued that the historical significance of the case and the possibility that real answers might come out were of enormous public interest. He also noted that all of the witnesses in this case are now dead.
Bell elaborated about the brutality of the crime, pointing out that “the victims were shot 60 times with pistols and shotguns, their skulls were crushed and their flesh was shredded.” Previous rulings in the 11th Circuit and in other circuits have allowed the release of grand jury records for reasons not enumerated in the exceptions provided for by the rules, he argued.
“It’s been so long what would be the harm?” Judge Wilson asked Hinshelwood. Hinshelwood’s argument is that the 2017 decision by District Court Judge Marc T. Treadwell overstepped the court’s authority to release secret grand jury testimony. Rule 6(e) restricts release of grand jury information with few exceptions and historical interest is not one of the provisions outlined by the rule, according to the government’s argument. If the rule was amended to include such records, the government would not oppose release of the Moore’s Ford transcripts, according to its brief filed in the case.
Prosecutors often argue that the grand jury process would be harmed if witnesses fear testimony will become public, making witnesses less cooperative. Information on this page is extracted from the following media sources: U.S., historian battle over unsealing records on 1946 lynching by Associated Press writer Kate Brumback and Latest Moore’s Ford Dispute Centers on Grand Jury Transcripts by Tim Bryant and Brad Schrade, Atlanta Journal-Constitution
Attorney Joe Bell reached out to Ms. Hayes in late September, 2018 to invite her to attend the October 3 Eleventh Circuit Court oral arguments in Atlanta. When Mr. Bell approached the podium, he introduced her to the three-judge panel as the first order of business in his summary.
The ensuing silence was both poignant and impactful.
Roger Malcolm Hayes was two years old at the time his father was lynched. His mother, Mattie Louise Campbell, the estranged wife of Roger Malcolm, took the toddler to Ohio where a family friend adopted him. Hayes returned on occasion to visit family and he regularly attended the memorial efforts to remember his father and the others lynched at Moore’s Ford, said his daughter Atanya-Lynette Hayes. Roger Hayes was hopeful when authorities reopened the case in 2000 that his father’s killers would be found, but he died in April 2016 with nothing resolved,
Ms. Hayes said. He would “not be okay” with authorities closing the case, Ms. Hayes said. “He wanted justice,” she said. “He never cared about retributions or money or anything. He wanted someone held accountable for murdering his father. It bothered him that people knew who did and protected those people.” Atanya-Lynette Hayes should know by late May, 2019 if the truth about her grandfather’s murder will finally be revealed
Eleventh Circuit Court of Appeals, Oral Argument Recordings; Anthony S. Pitch v. United States, Appellant Docket No. 17-15016 Argument Date: 10/3/2018 Total Time: 35:56 Download Size: 32.9 Mb
After the hearing, a group of supporters for Anthony S. Pitch gathered outside the courthouse including Attorney Joe Bell, Atanya-Lynette Hayes (granddaughter of Roger Malcolm) who flew in from Toledo, Ohio, especially for this occasion, Cassandra Green (current Director of the Moore’s Ford Memorial Committee), and other members of the MFMC. Also in attendance were members of the Southern Christian Leadership Conference (SCLC, DeKalb). Johnathon Kelso, a photographer for the New York Times, attended the hearing and photographed the pre- and post-event gatherings in Atlanta.