When juror No. 475 was called, a middle-aged woman rose and said, “Deborah Harris, office assistant, single, 12th grade.”
Judge Nance replied, “Glad to have you.” Then he turned to the courtroom and said, “You notice when they say ‘single’ it has a little punch to it? You notice that?” The judge’s observation drew laughter from his audience.
Ordering prospective jurors to publicly state personal and potentially embarrassing information is unusual in so-called voir dire proceedings. It is not unusual for Nance, who was publicly rebuked in 2001 by the state Commission on Judicial Disabilities for making inappropriate comments to women in his courtroom.
Another prospective juror in Nance’s courtroom that day was City Paper senior writer Van Smith, who told the court he was a journalist when his turn to declare occupation, education, and marital status came up 10 minutes later.
An hour later, the judge privately interrogated those members of the jury pool who had been previously convicted of a crime, or victimized by one, to determine each prospective juror’s ability to deliberate in a fair and impartial manner.
Smith, who lives on a Southwest Baltimore street that also doubles as an open-air drug market, approached the bench and said he was a frequent crime victim.
Nance neglected to ask the reporter whether living in a drug-infested neighborhood would bias him against either side in a drug case, but according to the official record of court proceedings, the judge ended the conversation by saying to Smith, “And you understand that you can’t write about what occurs in here or anything that you hear about today?”
“I can’t write about any, anything about this case?” Smith said.
Nance: “No, no.”
Smith: “What restrictions are there on that?”
Nance: “The judge just ordered you.”
Smith: “So I have a gag order as a potential juror?”
Nance: “Yes. I don’t want the jury worried about . . . ”
The rest of the judge’s response, transcribed the next day by Smith from the videotaped record, was unintelligible. The reporter continued to press for clarification: “Well, I’m just interested to know what the demarcations are. If I . . . ”
Nance: “It’s easy. It’s easy. I’ll make it easier on you. I just ordered it. It’s what I just said.”
Smith: “I can’t write that I went to jury? That I was a potential juror in a trial?”
Nance: “You can’t write about anything you were a part of as a juror in my courtroom, like I just said. That’s what I just said. I don’t want people sitting around being aware of or conscious that they can’t speak around you.”
Smith was not selected as a juror in the trial.
The U.S. Supreme Court ruled in 1984 that voir dire proceedings must be open to the press and the public, except in very unusual circumstances. “The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest,” wrote Chief Justice Harry Blackmun in the decision of Press-Enterprise v. Superior Court of Riverside County.
“Voir dire is always open,” says Gregg Leslie, legal defense director of the Reporter’s Committee for Freedom of the Press, an Arlington, Va.-based nonprofit that provides free legal assistance to journalists. “As a technical matter, in order to close voir dire, you’d have to include a written finding of what the overriding interest was. So when judges just casually mention that they’re going to order secrecy, it’s almost always unconstitutional.”
Nance declined to comment for this story.
After reviewing the court videotape, Smith says he believes he knows what Nance’s overriding interest was: “to keep me from writing about his inappropriate comments that were demeaning to a single woman juror.”
It wouldn’t be the first time Nance’s behavior on the bench was deemed newsworthy. In June 2001, he was issued a rare public reprimand by the state Commission on Judicial Disabilities for behaving in an “undignified” and “demeaning” manner toward women in his court and private office. According to the Sun’s reporting of the commission’s investigation, four female prosecutors formally accused the judge of having an “explosive temper,” and of making inappropriate comments about their appearance. Media coverage at the time also focused on Nance’s unusual habit of ordering prospective jurors to disclose personal information, and then making joking or suggestive comments about the jurors to the court. “Nance routinely asks jurors to stand and announce their marital status and educational background in front of the rest of the jurors,” wrote Caitlin Francke in a December 21, 2000, Sun story, citing court transcripts that show Nance ordering a single female prospective juror to “stand up and let us see [you]. . . . There may be a single guy out there.”
The commission also criticized Nance for being hostile to lawyers arguing cases before him. A year earlier, the judge was disciplined for jailing Lawrence Rosenberg when the defense attorney left the courtroom for six minutes because his client hadn’t appeared. More recently, Nance was brought before the disabilities commission last year on two additional charges of judicial misconduct. A source familiar with the investigation says that Nance was effectively acquitted on both counts.
Reached by phone last week, prospective juror Deborah Harris says she wasn’t offended by Nance’s courtroom remarks about her, but she did find his behavior “odd.”
“I didn’t necessarily like getting up to say those things in front of everybody,” the 47-year-old Govans resident says, “because I didn’t think it was everybody’s business. I’m not a very outspoken person as far as in groups, so I felt a little shy, but I wouldn’t be offended by it.” She adds, “I just thought it was protocol.” Harris wasn’t selected for the jury.
Smith says he had no intention to write about his experience when reporting for jury duty and was only “vaguely aware” of Nance’s troubled history when assigned to his courtroom.
Though Nance’s gag order suggested to Smith that he had stumbled onto a story, it also prevented him from writing about it. “I initially intended to disobey the order,” he says, “but after much contemplation decided that breaking a judge’s order, even if it was illegal, would be inappropriate.”
At press time, City Paper attorney Matthew Evans—who had requested written clarification about the gag order—sent the following e-mail to Van Smith: “I just got a call back from Judge Nance’s Chambers. The law clerk spoke with the judge, who relayed the message that because you were never sworn as a juror, you can write about whatever you want.”
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