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On Tuesday, attorneys for Fox News appeared before a New York appeals court in the latest attempt to prevent reporter Jana Winter from being forced to testify in the ongoing criminal trial of James Holmes, accused of a deadly shooting rampage at an Aurora, Colo., midnight screening of The Dark Knight Rises in July 2012.
In her reporting, Winter cited law enforcement sources as revealing that Holmes had sent a University of Colorado psychiatrist a notebook previewing his attack. The description of Holmes’ writings by law enforcement possibly violated a judge’s gag order, and Holmes’ attorneys have made the argument that law enforcement illegally compromised the process and attempted to influence the result of a high-profile death penalty case.
As a result, a subpoena has been issued for Winter’s testimony, but since the reporter is a New York resident, her attorneys have been attempting to leverage New York’s strong reporter shield law to quash the subpoena. She’s struck out twice already in court, and if the top New York appeals court refuses to allow the New York law protecting the revelation of reporter’s confidential sources to apply, Winter will be forced to travel to Colorado, where the Holmes case is on hold until January. If Winter ends up in Colorado, she is then prepared to refuse to testify, according to Fox News outside counsel Dori Ann Hanswirth, which could mean that Winter sits in a jail cell for quite some time.
At the appeals court hearing on Tuesday, the judges considered the interplay between one state’s reporter shield law and criminal law procedure providing for the availability and testimony of out-of-state residents.
Holmes’ attorneys are arguing that the New York Legislature never intended to exempt reporters from subpoenas from another state.
“Indeed,” says their legal brief, “if the Court in New York was to unilaterally decide that one class of citizens is immune from being subpoenaed to another state, we could expect that other states could likewise define safe no-subpoena-zones for various types of citizens that they particularly cherish: oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont … the list could go on.”
But Winter’s attorneys say that Holmes’ lawyers are too narrowly focused on the express language of New York’s statutes, which don’t explicitly carve out protection for out-of-state subpoenas. Instead, they point to the larger purpose of the New York Legislature’s decision to enact the shield law.
“There is no question what this State’s social judgment is on the question of whether to compel journalists to burn their confidential sources,” says Winter’s legal brief. “The Shield Law categorically immunizes any professional reporter from having to reveal her sources under any circumstances.”
Winter’s attorneys believe New York’s shield law would crumble in power if there were carve-outs for out-of-state subpoenas. And that, they say, would lead to fewer sources cooperating with journalists. In contrast, Holmes’ attorneys have ridiculed this argument, writing that “many journalists who have complied with their legal duty to appear as witnesses subject to subpoenas have gone on to have spectacular careers … some at Fox News!”
That’s a reference to Judith Miller, once subpoenaed to testify about who had disclosed to her the identity of covert CIA operative Valerie Plame as a reporter at The New York Times. Miller now works at Fox News and has penned a column on the Winter situation. So has Fox News’ Howard Kurtz in a sign that the Winter situation is quickly becoming a bit of a cause célèbre at the cable news network.
At the hearing, some of the judges questioned whether it made any difference that Winter’s work was done in Colorado rather than in New York. “You want us to say a journalist who conducted a Colorado interview in Colorado would not be subject to a Colorado court?” asked Judge Robert Smith, who happens to be the father of Buzzfeed editor Ben Smith.
The appeal has been expedited, and a ruling is expected before the Colorado judge reconvenes the Holmes case on Jan. 3. It also happens as Congress continues to debate whether to adopt a federal shield law known as the Free Flow of Information Act, which was originally introduced more than six years ago by now-MPAA chairman Chris Dodd. A federal shield law could solve some of the state conflicts, although it’s unclear whether it would save Winter. Hanswirth says it depends on how it was written.
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