NEW JERSEY — The New Jersey Attorney General issued asubpoena to a recent graduate of Rowan University earlier this month, orderinghim to hand over the unedited footage of a documentary he shot about death rowinmate Robert O. Marshall. The filmmaker is contesting the subpoena in court onthe grounds that he has a journalistic privilege to keep the informationconfidential. Jason Kitchen and six other students shot the documentary,titled “Fatal Mistakes,” for a film class and screened it at theuniversity in May. John Hagerty, spokesperson for the attorneygeneral’s office, said the state needs the unedited tapes for theirinvestigation against Marshall, who was sentenced to death in 1986 for hiring ahit man to murder his wife. Marshall has been fighting his conviction in thecourts, and a federal hearing to determine whether Marshall’s defenseattorney was effective is set for September. “We want to know whatis on those videotapes, it’s that simple,” Hagerty said. “Weare looking to determine if Marshall, his attorney, or others interviewed [forthe documentary] provided information we are unaware of.”Threelawyers appointed by the American Civil Liberties Union are representing Kitchento help him fight the subpoena. The ACLU took interest in the case after it wascontacted by filmmaker Michael Moore, whom Kitchen is interning for at hisproduction company, Dog Eat Dog Films. Kitchen, who graduated in Maywith a degree in communications, said the court should consider him a journalistbecause he engaged in investigative reporting while making the film. He said hehopes to distribute the film to a wide audience.“The journey wetook to complete this was everything and more that a journalist would do,”he said. “Everyone we interviewed went into this idea that they were doingthis for students. They didn’t think they were giving a deposition for thestate of New Jersey.”Lawyers for Kitchen said that journalists areprotected from having to reveal sources or material to courts under FirstAmendment qualified privilege. The qualified privilege can be overcomeif the court finds that the information sought is highly relevant, necessary orcritical to the maintenance of the claim and not obtainable from any othersources.In 1995, a federal district court in New Jersey quashed asubpoena against a college reporter, ruling that she was protected under thequalified privilege test.A motion to quash Kitchen’s subpoena wasfiled this week and oral arguments will probably be set for sometime in August,said Robert Balin, one of his lawyers.“I am fully confident thatthe court will agree with us that Jason is entitled to invoke qualifiedprivilege,” Balin said. “Case law says that privilege applies to thenovice as well as the professional.“It would send a terriblemessage if the government were able to use Jason as an investigatorial arm ofthe government,” he continued. “That is not the function of aprofessional journalist, and it is obviously not the function of a studentjournalist.”This is the first time an interview with Marshall hasever been recorded on video, said Hagerty, the spokesperson for the stateattorney general. Besides the interview with Marshall, Hagarty said the state isalso ordering Kitchen to hand over tapes for interviews he had withMarshall’s former attorney and two of the investigators working on thecase. The attorney general also issued a subpoena to Rowan University,where the master copies of the tapes are being held in a locked safe.Joe Cardona, an university spokesperson, said the school had obtainedprivate counsel and was waiting to see what the court decides before theyprovide the tapes. He said the university should not have to be give thetapes to the attorney general, not only because of reporter’s privilegebut also because of scholar privilege, which protects students and faculty fromsubpoenas for research projects. “We are in support of thestudents until the courts tell us otherwise,” Cardona said.