Boney stands up for First Amendment

Jay Ashley

This month, Amanda and I have turned over the legal column to Jay Ashley of The Alamance News. Jay’s account of a recent episode involving his boss, Tom Boney, says more than we could ever say about standing up for the First Amendment, freedom of the press, the people’s right to know, and the constitutions — state and federal. We have, of course, reported Tom to the State Bar for practicing law without a license.

As the case involving the student charged with bringing a gun to Southern Middle School began, the boy’s attorney, Robert Steele, made a motion to close the hearing to the public, setting off a confrontation with The Alamance News which had a reporter present to cover the case.

Chief District Court Judge Kent Washburn responded to Steele’s motion by saying “that cat’s already out of the bag,” referring to the previous report in The Alamance News about the case and the naming of Daniel Paul Bowman as the juvenile charged with carrying a pistol on school grounds.

But Washburn expressed his intention to grant the request, saying that he would not close the case if the newspaper reporter, the only person in the audience who did not have a participatory role, would agree not to print Bowman’s name “unless he’s bound over to Superior Court.”

Tom Boney, Jr., editor and publisher of the newspaper, was summoned to court and protested the proposed closing. He cited the state constitution’s wording that “all courts shall be open” and told the judge he had “no authority to close” the case and that Boney had “a right to attend the proceedings.”

Judge Washburn heard Boney’s citations of the law, then left the bench for about five minutes.

He returned and again repeated his condition that the case could be heard in the open, if the publisher would agree not to print the name if Bowman was remanded as a juvenile.

Boney refused and said the state “constitution supersedes any statutory” laws.

Judge Washburn said if Boney would “not conform to the conditions” for attending the case, “then it’s closed.”

He added that “the point may be moot in a few minutes,” suggesting that he intended to send the case to Superior Court “in light of what has happened in other cases in other states,” ostensibly referring to shooting deaths at other schools across the nation within the past few months.

Boney again quizzed the judge about his basis for closing the case and Judge Washburn said the laws of the legislature empowered him to close the juvenile hearing.

Washburn said he was relying on those provisions from state statutes which specified that the judge had discretion to close a juvenile hearing when requested to do so by a defendant.

Boney repeatedly cited the North Carolina Constitution, Article I, Section 24, which includes the proviso, “All courts shall be open.”

Boney also cited various North Carolina court cases which have upheld the right of the public and press to attend trials, reading to the judge from some of the opinions.

He cited former Alamance County Superior Court Judge Marsh McLelland’s written opinion in the “Little Rascals” case, in which the jurist concluded “that these unambiguous provisions of the state constitution establish an absolute right on the part of the press and public to attend” that trial. McLelland referred to both the provision Boney insisted applied as well as Article I, section 24 which requires that “No person shall be convicted of any crime but by the unanimous verdict of a jury in open court.”

Boney also cited state precedent in a North Carolina Court of Appeals case last year in which the court unanimously held that “a trial court’s discretion to close court proceedings and seal records is subject to constitutional limitations.”

Further, Boney said if Washburn was not satisfied with the North Carolina constitution and court rulings, he insisted that U.S. Supreme Court cases had also established a “presumptive right” under the U.S. Constitution for the public and press to attend all phases of criminal trials that could only be abridged by the holding of a hearing.

Boney outlined the specific requirements necessary for a hearing as “demonstrating the existence of an overriding interest’ that is likely to be prejudiced if the court remains open” and requiring a “written order” from the judge specifying why the court must be closed after such a hearing on closure were held.

I’m not going to delay this hearing any further,” he said, and noted that the previous coverage of the Bowman case was accomplished by Boney “being here [in juvenile court] without permission.”

The editor argued for the “great public interest.” He also said, “very respectfully,” that the judge was acting “clearly beyond your rights” as regards state constitutional law and said he intended “to remain in court unless you arrest me.”

A half dozen deputies surrounded the editor, who sat down in the pew and faced the judge, refusing to move.

“I don’t want to put you in jail,” the judge said, “but it looks like you are hell bent to go.” “Under what provisions am I being removed?” Boney asked.

The judge cited chapter 7A-640 and said he was protecting the rights of the juvenile “at the stage of the adults courts. When it gets there, you can report on what happens.”

Boney said the judge had “no authority to close the court” and that he “regrets your actions.” He said he thought the judge was “trampling the rights of the citizens” and that he did “intend to stay.”

The bailiffs remained around the seated editor as Judge Washburn called defense attorney Steele and assistant prosecutor Misty Carden to the bench for a conference. After they spoke, Steele met with the boy’s parents in an adjacent room and returned to the courtroom. He withdrew his motion to close the case