A week after Alamance News publisher Tom Boney, Jr. was handcuffed and removed from the Historic Court House while trying to cover a high-profile hearing, Alamance County’s top-ranking judges – senior resident superior court judge Tom Lambeth, Jr. and chief district court judge Brad Allen, Sr. – issued an order to “clarify” procedures that the press, and general public, will need to follow to attend court hearings while COVID-19 restrictions remain in effect.
Boney’s near-arrest by a visiting judge has garnered state and national attention; and the decision to close two court proceedings are the basis for a pending appeal filed by The Alamance News and two other newspapers, The (Raleigh) News & Observer and Triad City Beat, an alternative weekly in Greensboro.
Boney had written Lambeth and Allen the same morning, December 8, that he was expelled from Alamance County’s Historic Court House, asking them to establish parameters that would ensure state and U.S. constitutional guarantees are followed and to allow the newspaper to be present to cover future courtroom proceedings, particularly those scheduled in several high-profile cases.
“We believe there is a paramount responsibility to find ways to comply with the N.C. Constitution’s requirement that ‘All courts shall be open,’ even with the attendant challenges associated with the pandemic,” Boney wrote, noting that an Alamance News reporter had recently covered a case over which Allen had presided, with no difficulties. The publisher also acknowledged that executive orders issued by Gov. Roy Cooper amid the ongoing coronavirus pandemic have each contained an explicit exemption for “First Amendment Rights.”
In his letter to judges Lambeth and Allen, Boney pointed to a recent decision by the U.S. Supreme Court that reaffirmed the primacy of the First Amendment. In Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, which addressed a different component of the First Amendment – restrictions on attendance at worship attendance that Cuomo had imposed on areas with high numbers of COVID-19 cases.
“In the opinion from that case, the U.S. Supreme Court concluded, ‘[E]ven in a pandemic, the Constitution cannot be put away and forgotten,’” Boney noted in his letter to judges Lambeth and Allen. The U.S. Supreme Court also held, in its November 25 decision, that “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
‘[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”
– U.S. Supreme Court opinion in Catholic Diocese of Brooklyn, New York vs. Andrew M. Cuomo, Governor of New York
The following day, Lambeth called Boney to say he was “so upset” to hear what had happened to him, telling the publisher, “I want to ensure that nothing like this happens again.”
Despite Boney’s experience, the order that Lambeth and Allen issued Friday says that “Alamance County courts have remained open to the public and the media,” though statewide restrictions imposed since COVID-19 emerged in this state in March continue to limit public access to court buildings and courtrooms.
“I wish the judges had been more candid and straightforward about the reason and need for their order – because, in fact, judge Fred Wilkins’ court had not been open to the press.”
– ALAMANCE NEWS PUBLISHER TOM BONEY, jR.
Under Lambeth’s and Allen’s order, members of the press seeking to attend a court hearing must now submit a written request, via email, to the county’s superior court trial coordinator or district court trial coordinator (depending on where the case is to be heard) no later than 2:00 p.m. of the business day prior to the date on which the case is scheduled.
Written requests for press access to court proceedings must include: the name of the case; file number; court date; courthouse location and courtroom; and a statement that access is being requested as a member of a media outlet, according to Lambeth’s and Allen’s order.
In their order, Lambeth and Allen also note that, to comply with social distancing guidelines for COVID-19, only the first five requests from news media will be approved – and no more – per day and per hearing. There may be fewer than five media requests granted, depending on “the number of scheduled defendants, witnesses, or alleged victims…present for a particular case,” based on their order.
Lambeth and Allen also note in their order that, for specific cases, including those with significant public interest, “audio and or video live streaming may be possible to persons outside the courtroom and made available to the public and the press to be determined by the presiding judge.”
The order issued Friday differs from the county’s “safe jury plan,” which was signed by Lambeth and Allen in August and published on October 12, 2020. According to that order, “cameras and other equipment” were being installed in the courtroom at the Historic Court House to permit the public and press to observe court proceedings through live streaming. As of December 8, no provision appeared to have been made for members of the general public or the press to observe Alamance County court proceedings.
High-profile, racially-charged case resolved outside of public view
The order that Lambeth and Allen have entered to “clarify with the media that they do have access to courtrooms” follows a December 8 court hearing, from which Boney was ejected and handcuffed on an order from the presiding judge, Fred Wilkins, Jr.
Boney had been attempting to cover the sentencing hearing for Sandrea Warren Brazee, a 53-year-old white woman from Burlington who had been charged with two counts of felony assault with a deadly weapon after she allegedly tried to run over two 12-year-old black girls outside of a mini mart in Graham this summer. [Brazee pleaded guilty to two reduced charges of misdemeanor assault with a deadly weapon; some critics, describing themselves as “anti-racists” and “racial justice” activists, have likened her conviction on reduced charges to a slap on the wrist.]
Wilkins refused to hear a written motion that Boney had filed shortly before the hearing in Brazee’s case, which outlined a litany of state and federal court precedents that have long established the constitutional right of the press and the public to observe court proceedings. The retired visiting district court judge from Rockingham County initially told the publisher that he was holding him in contempt of court and ordered him to be taken to jail for refusing to leave the second-floor courtroom inside Alamance County’s Historic Court House.
Sheriff’s deputies threatened to charge the newspaper’s publisher with resisting arrest if he continued asserting his right to be in the courtroom. Boney was ushered to an adjoining hallway, forced against a wall, and handcuffed. As they led Boney downstairs to the courthouse rotunda, Wilkins sent word to the three sheriff’s deputies to release him and remove him from the courthouse.
“All courts shall be open.”
– North Carolina Constitution, Article I, section 24
One week earlier, Wilkins had prohibited The Alamance News and other members of the press from covering another high-profile hearing at the Alamance County criminal courts building along West Elm Street.
On December 2, Boney submitted a letter to Wilkins, seeking to attend another case over which the judge was presiding, a hearing on a bond modification request, filed by the district attorney’s office, for Rev. Greg Drumwright of Greensboro. County officials had sought to prohibit Drumwright from coming onto county-owned property until his charges, stemming from a march and rally he held in Graham on October 31, are resolved.
“We are concerned by the ‘grapevine’ indication that it is your intention to close the courtroom during the motions hearing having to do with the bond of Rev. Drumwright,” Boney explained in his letter to the visiting judge. “We would respectfully ask that you revisit and reconsider that position, if indeed, it is the one that you have actually reached. We certainly recognize the difficulties and complexities of dealing with open court issues in the midst of the current pandemic.”
Boney elaborated in his letter to Wilkins that, as the county seat newspaper in Graham, The Alamance News has followed and covered extensively the marches, rallies, and demonstrations in Graham over the past six months, including those involving Drumwright. “There is enormous public interest in Rev. Drumwright’s case, and, quite frankly, every dimension of it.”
Minutes before that afternoon’s hearing began, Wilkins sent word to Boney by a clerk, who informed the publisher, “He says ‘no.’” [Drumwright’s legal team ultimately prevailed on that issue, with Wilkins reportedly deeming the D.A.’s request overly-broad.]
No constitutional pandemic provision
The pending appeal that The Alamance News has filed in the state’s second-highest court seeks to overturn the court closure. “The U.S. Supreme Court has recently made an important First Amendment decision that emphasized government may not curtail religious liberty in the name of pandemic regulation,” Boney noted. “In the same way, we do not think there is a legal way to eliminate constitutionally protected access to courts for the public and press, simply by claiming ‘pandemic, pandemic.’” North Carolina’s Constitution has a “simple and straightforward protection,” the publisher added, quoting Article I, section 24, which states, “‘All courts shall be open.’ We don’t believe a judge has any legal authority to simply disregard that important safeguard, which protects both the public and the press.”
“The procedural rigmarole set up in the order to designate, a day in advance, our or any other newspaper’s desire to attend what is supposed to be an open courtroom, is somewhat cumbersome and, I think, unnecessary.
“Nonetheless, I suppose the new procedures are at least preferable to being threatened with contempt, expelled from a courtroom, and handcuffed. So I guess I’d have to consider it some progress.”
– Tom Boney, Jr., Publisher of The Alamance News
As for Lambeth’s and Allen’s order, Boney said he had mixed opinions. “I wish the judges had been more candid and straightforward about the reason and need for their order – because, in fact, judge Fred Wilkins’ court had not been open to the press.
“Judge Wilkins’ harsh attitude mandating secrecy was, granted, an aberration in what has usually been an attitude of openness by all Alamance County judges, at both the district and superior court levels, so I can understand their desire to minimize, or ignore, Wilkins’ actions, but I guess this is as close as jurists come to rebuking one of their own.
“Additionally, the procedural rigmarole set up in the order to designate, a day in advance, our or any other newspaper’s desire to attend what is supposed to be an open courtroom, is somewhat cumbersome and, I think, unnecessary.
“Nonetheless, I suppose the new procedures are at least preferable to being threatened with contempt, expelled from a courtroom, and handcuffed. So I guess I’d have to consider it some progress.”
“Needless to say, I’ll be glad when we can return to unrestricted open courtrooms, as guaranteed in the state Constitution,” Boney said.
