Alamance News publisher Tom Boney, Jr. protested Alamance County resident superior court judge C. Douglas Green’s decision to unilaterally close an Alamance County courtroom to the public Monday morning, the opening day of the trial for a former elementary school principal charged with sexually assaulting a nine-year-old male student in a boys’ bathroom in late 2023 (see related story, this edition).
In his order, Green stated that a hearing on the motion for a limited court closure had been held late last month.
The newspaper could find no documents in the state’s online court management system of a prospective hearing or the scheduling of a hearing on the closure, except references to unspecified pretrial motions heard on October 22 and October 23. Nor was there any written motion filed for the limited court closure.
Green closed the courtroom Monday morning, at the beginning of witness testimony in the trial of former Eastlawn Elementary School principal Daniel McInnis, 46, white, male, of 632 Country Club Drive, Burlington, indicate that Green heard oral arguments on a motion by the prosecutor two weeks ago to close the courtroom to the public during the testimony of the alleged minor victim.
Alamance County assistant district attorney Elizabeth Olivier requested the closure due to the alleged victim’s current age (12) and his age at the time of the incident (nine). The alleged victim’s parents were allowed to remain inside of the courtroom during his testimony, based on the order granting the limited closure that Green entered last Friday, October 30.
Alamance County assistant district attorney Elizabeth Olivier requested the closure due to the alleged victim’s current age (12) and his age at the time of the incident (nine). The alleged victim’s parents were allowed to remain inside of the courtroom during his testimony, based on the order granting the limited closure that Green entered last Friday, October 30.
McInnis is charged with: statutory sex offense with child by an adult; sex act with a student; indecent liberties with a child; and sexual battery. He is being represented by John W. Cox of Graham and Lisa A. Dubs of Hickory, who did not object to the court closure.
At 10:15 a.m. Monday Green directed spectators, including the press, to exit the second-floor courtroom inside the Historic Court House.
“The reasoning is that due to the tender age of the alleged minor victim, who will be 12 at the time of his testimony, who was 9 years old at time of this alleged offense; due to the fact that the defendant is charged with serious sex offenses and as a result it will be necessary for the alleged victim to discuss issues of a sexual nature and sexual contact, which is not a natural subject for one of such tender age to be discussing in the normal course of events; the fact that he will testify in this case in an unnatural environment for him to talk about such subjects and therefore the, the delicacy increases when he is required to do so in front of strangers; and the fact that the alleged minor victim will be testifying in front of others in the court who are permitted to remain under the statute, the child doesn’t know these people, and it will, in and of itself, result in certain pressures on him, in and of themselves.”
– Judge C. Douglas Green’s order for a courtroom closure and excluding the public
Among the findings of fact Green made to support his order, he noted: “The reasoning is that due to the tender age of the alleged minor victim, who will be 12 at the time of his testimony, who was 9 years old at time of this alleged offense; due to the fact that the defendant is charged with serious sex offenses and as a result it will be necessary for the alleged victim to discuss issues of a sexual nature and sexual contact, which is not a natural subject for one of such tender age to be discussing in the normal course of events; the fact that he will testify in this case in an unnatural environment for him to talk about such subjects and therefore the, the delicacy increases when he is required to do so in front of strangers; and the fact that the alleged minor victim will be testifying in front of others in the court who are permitted to remain under the statute, the child doesn’t know these people, and it will, in and of itself, result in certain pressures on him, in and of themselves.”
Green concluded that the state has an overriding interest in safeguarding the physical and psychological well-being of a minor victim of sex crimes”; that the closure was no broader than necessary to protect the victim; that he had considered reasonable alternatives to closure; and that there was adequate support for closure, given the young age and sexual nature of the testimony to be given by the alleged victim in the case.
The closure lasted about 1½ hours before spectators were allowed back inside the courtroom, shortly before 12:00 noon Monday, to hear testimony from the state’s second witness, the executive director of CrossRoads in Burlington.
Boney briefly outlined his objections for Green before jurors returned to the courtroom following the lunch break Monday afternoon.
In a formal motion the publisher filed Monday afternoon and his oral arguments before the judge, the publisher contended that “there is no compelling need for the closure sufficient to overcome the public’s presumptive right of access to judicial proceedings and pleadings.”
Boney also pointed out that there was no mention of the planned closure in the court record until Green’s order had been filed.
“I am very concerned, because in 36 years of living in Alamance County, of the two [superior] courtroom closures, both have been by your honor,” Boney said, referring to Green’s decision in March of this year to close the courtroom for an evidentiary hearing in the middle of a first-degree murder trial.
“I disagree, but go ahead,” Green responded.
“We were not given any notice,” Boney said, citing his objection to the closure during the earlier trial, in which he had requested to be notified if there were further plans to have a closed session. Boney presented Green with a copy of his motion, saying that the newspaper’s attorneys had advised him to bring the motion to the judge to repeat the request for notice of any courtroom closure in the future.
“What I find, [is that the judge’s order for the courtroom closuret] totally absent any recognition of the North Carolina Constitution, which provides, ‘All courts shall be open.’ This is a state court.” The state Constitution is preeminent in such matters, Boney said, adding, “There is no exception in it.”
“What I find,” Boney said, referring to the order that Green entered last Friday, “[is it is] totally absent any recognition of the North Carolina Constitution, which provides, ‘All courts shall be open.’ This is a state court.”
The state Constitution is preeminent in such matters, Boney said, adding, “There is no exception in it.”
The publisher pointed to a similar attempt in 1991 to close a Pitt County superior courtroom during the trial of Robert F. Kelly, Jr. in the infamous Little Rascals Day Care Center trial in Edenton in which the presiding judge, Alamance County native Marsh McLelland, denied a motion to close the courtroom during the children’s testimony.
Boney pointed out for Green that the alleged victims in the Little Rascals case were even younger than the alleged victim in McInnis’ case.
Several media outlets that fought to keep the courtroom open for the children’s testimony, along with the N.C. Press Association, presented an affidavit from a child psychologist who attested that “there are no empirical data to support the contention that children will inevitably be unduly traumatized by testifying in open court, or that the presence of spectators will necessarily result in a child witness giving less reliable or less complete testimony,” according to filings in the Kelly case.
McLelland ultimately concluded that the state Constitution provides that “all courts shall be open” and that “no person shall be convicted of any crime but by the unanimous verdict of a jury in open court,” reasoning that “these unambiguous provisions of the state constitution establish an absolute right on the part of the press and public to attend this criminal trial; accordingly, the closure motion must be denied.”
Kelly was originally convicted in 1992 of 99 counts of sexually abusing children at the day care center but was granted a second trial on appeal and was ultimately exonerated in 1997. McLelland died at his home in Burlington in March 2015.
Boney told Green that McLelland concluded that the supremacy of the North Carolina Constitution overruled federal case law and state statutes which Green had cited in his October 30 order. He pressed the judge to make a transcript of the child’s testimony available as soon as possible.
“It’s up to the court reporter,” Green said, turning to a court reporter from the state’s Administrative Office of the Courts, who was filling in on Monday for the Alamance County court reporter who was absent due to illness. “When do you think you will be able to get that to all the parties?” he asked.
Boney pointed out that the brevity of the closed session should mean it shouldn’t be that much to be transcribed.
“We’ll get it in the normal course of business; we’ll get this as soon as humanly possible,” Green said, before asking the court reporter, Jennifer W. Lloyd, to forward the transcript to him as soon as it’s ready.
“You can forward it to me, and I will get that to all the parties, including Mr. Boney,” said Green.
The transcript had not been furnished to the newspaper by press time Wednesday night.
