December 10, 2013 10:10am PT by Eriq Gardner
Fox News Reporter Won't Have to Testify in Aurora Theater Shooting Case
Fox News reporter Jana Winter has been saved from possible jail time by a New York appeals court.
After a shooting rampage at an Aurora, Colo., midnight screening of The Dark Knight Rises in July 2012, Winter cited law enforcement sources as revealing that suspect James Holmes had sent a University of Colorado psychiatrist a notebook previewing his attack. In seeking to compel Winter's testimony about the identity of her sources, Holmes' attorneys made the argument that law enforcement illegally compromised the legal process and attempted to influence a high-profile death penalty case.
That set off a legal debate over whether Winter, a New York resident, could lean on New York's strong reporter shield law to quash a subpoena. Holmes' lawyers argued that Winter did her work in Colorado -- with less generous protections on source identification -- and that criminal law procedure provided for the availability and testimony of out-of-state residents.
At a lower court, Winter lost, and was facing the possibility of having to travel to Colorado for a hearing next month in Holmes' ongoing criminal prosecution. There, she was prepared to remain mum and face the possibility of months in a jail cell.
But in a 4-3 ruling on Tuesday, a New York appeals court revealed that it won't let that happen.
"Although there are uncertainties concerning the application of the outer reaches of our statute, particularly the scope of the qualified privilege for nonconfidential news which must be determined on a case-by-case basis," wrote Victoria Graffeo in the majority opinion, "there is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source. And that concern is directly implicated here given that the only purpose for Winter's testimony is to ascertain who leaked the information regarding the discovery of the notebook."
Judge Graffeo added that as a New York reporter, Winter relied on the protection of New York's shield law and was entitled to have the issue adjudicated in her home state. The judge rejected the suggestion of big ramifications. In legal papers, Holmes' lawyers argued that states could protect classes of favored citizens -- including oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont. It "will not, as Holmes suggests, have the effect of expanding the territorial effect of New York law beyond our borders," writes the judge.
In his dissent, Judge Robert Smith disagreed.
"This seems to me an excessive expansion of New York's jurisdiction, one that is unlikely to be honored by other states or countries or to attain the predictability that the majority says is its goal."
The effort to protect Winter has attracted the attention of Fox News' full brass.
In a statement after the ruling, Fox News CEO Roger Ailes said, "Today's ruling is a major win for all journalists. The protection of Jana Winter's confidential sources was necessary for the survival of journalism and democracy as a whole. We are very grateful that the highest court in New York State agreed with our position."