Lawyer subpoenas paper's e-mail, Web site data He claims Internet use can taint jury pools


NEW YORK -- A murder trial in California is turning into a first test of a newspaper's right to shield its readers' e-mail and Internet use from a defense lawyer's claim that electronic coverage of a case can taint a jury pool.

James Farley, a defense lawyer in the murder case, has subpoenaed the Ventura County Star for electronic mail, poll results published on the newspaper's Web site and the digital footprints that visitors to the site have left to determine whether the newspaper's electronic coverage of the crime may have influenced potential jurors beyond the paper's circulation area. Until now, defense teams trying to find untainted jury pools have been satisfied to move trials only beyond the range of local news media.

Before Farley's client, Michael Dally, can go on trial on charges of conspiring with his girlfriend to murder his wife, Judge Frederick Jones of State Superior Court in Ventura County must rule whether a news organization's Internet activities should receive the same privacy protections that its reporters' notebooks are afforded under the First Amendment and California's shield law.

Several First Amendment experts said they knew of no case in which a court had ruled on First Amendment protection for Internet correspondence.

Besides California, 28 states and the District of Columbia have shield laws for reporters that protect against disclosure of unpublished material, although they, too, are silent on the question of digital information.

Farley has subpoenaed the Star's published and unpublished letters to the editor on the case, all e-mail correspondence to the paper about it and the details of a Web site survey that asked visitors to vote on the guilt or innocence of Dally's girlfriend, Diana Haun, before Haun was convicted of killing Dally's wife, Sherri Dally.

To Timothy J. Gallagher, the editor of the Star, the subpoena comes down to the argument that unpublished material, whether on paper or in digital form, is the same as unpublished notes, and is therefore protected.

"I don't have a problem giving them anything that we have already published," Gallagher said in an interview, "but if you ask for the fruits of anything else we have gathered the answer is no, and if you come after a private conversation in letters or on the Web site, I say no, you can't have that either."

Pub Date: 10/19/97

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