Judge Denies Bid to Unseal Dally Papers

A Ventura County judge denied requests Tuesday to make the contents of sealed documents in the Sherri Dally murder case available to the public and refused to revise a sweeping gag order prohibiting attorneys from discussing even routine court proceedings.

“I have a deep and abiding regard for the rights of the press and the public to know precisely how this business is conducted,” Superior Court Judge Frederick A. Jones said.

But, with three weeks down and three weeks to go in jury selection for Diana Haun’s murder trial, Jones said that releasing sealed documents could interfere with his ability to find an impartial jury.

He denied a request by The Times and the Ventura County Star to unseal papers and transcripts relating to five motions recently filed in the case, and he left a June 10 gag order intact.

Haun and her longtime lover, Michael Dally, are charged with murder, kidnapping and conspiracy for allegedly planning and carrying out the May 1996 slaying of Dally’s wife, Sherri.

The pair also face two special-circumstance allegations, making them eligible for the death penalty if convicted. Dally’s trial will be held after Haun’s.

During Tuesday’s court hearing, Times attorney Karlene Goller and Megan E. Gray, representing the Star, cited U.S. Supreme Court decisions holding that public access to documents and court proceedings is a fundamental right under the Constitution.

Court documents cannot be sealed from the public without a specific factual finding that their release would create a substantial probability of harm to the defendants’ rights to a fair trial, the lawyers argued.

“There has been no such proof of that,” Gray said in court, urging the judge to make the documents available immediately.

But Jones ruled that if released, the motions would create a substantial probability of harm.

For instance, Jones said, the release of a 10-page document referred to as the Sherri Dally Letter would jeopardize the defendants’ rights.

“It is my belief that if made public . . . it would create a substantial probability that a fair trial could not be had at either the Haun or Dally trials,” Jones said.

If prosecutors decide to admit the document as evidence during either trial, he added, then the public would learn the contents.

Addressing the gag order, Goller requested modifications that would allow lawyers to discuss such basic information as the filing of motions and the issuing of rulings.

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An initial gag order in the case was issued by Municipal Judge John R. Smiley in August 1996, forbidding the county’s public defender and district attorney from releasing evidence or facts about the case to the media.

The order was co-authored by prosecutors and defense attorneys, and it repeated court rules laid out in a new California law passed after heavy publicity in the O.J. Simpson murder trial.

In January, after Dally’s attorney made remarks outside court, prosecutors asked Jones to issue a second gag order. At that time, Jones denied the request.

But on June 10, he issued an order directing that “no attorney or party to this case or any person connected to any attorney or party to this case are to speak to any other person about this action.”

In court papers, Goller and Gray argued that the order should be more specifically tailored to comply with the 1st Amendment.

They cited a 1991 U.S. Supreme Court decision that states in part: “blanket rules restricting speech of attorneys should not be accepted.”

For their part, prosecutors opposed modifying the gag order and unsealing the documents on the grounds that the outcome of a criminal trial should be decided by impartial jurors who know as little about a case as possible.

Lawyers for Dally and Haun also opposed unsealing court documents, although one of Haun’s attorneys told the judge that he would not be opposed to changing the gag order.

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Deputy Public Defender Neil B. Quinn said it might be appropriate to modify the order to allow attorneys the opportunity to clarify or restate matters raised in court. Jones denied the request.

Among the other documents sought by The Times and the Star was a motion dealing with two secret witnesses.

If that motion is unsealed, Dally’s attorneys argued, his rights would be compromised because the contents would be so widely reported as to potentially force a change of venue.

“It is our opinion that this evidence is highly prejudicial to Mr. Dally,” defense attorney Robert Schwartz argued.

Jones agreed. He said the documents deal with a confidential matter involving personal medical records and should not be made public.

After his ruling, the judge sharply criticized both newspapers for their coverage of the case. News accounts of the events leading up to the trials have jeopardized Dally and Haun’s fair-trial rights, he said, and forced jury selection outside Ventura County.

“Each individual defendant is entitled to a fair trial--a trial by an unbiased jury that cannot be obtained in Ventura County directly and almost entirely because of the publicity, the media attention paid this case by the Ventura County Star and by the Los Angeles Times,” the judge said.

“This community is undertaking considerable expense and effort and inconvenience to attempt to get a jury in Santa Barbara,” Jones continued. “But we are there because of the media.”

When Gray suggested at one point that she imagined how difficult jury selection must be, Jones interrupted.

“You don’t have a clue,” he said. “You can’t even imagine.”

Outside the courtroom, media attorneys said such restrictions, while intending to guard defendants’ rights, have the potential to undermine the public’s rights.

“Obviously this is a trial of public importance to this county, and we are trying to inform our readers,” Goller said.

The documents under seal and transcripts of closed court hearings, she said, are the official sources of information that the media relies upon to accurately report the news.

“The public,” she said, “is getting shut out of their proceeding.”