Judge delays deciding if Fox News reporter must testify

Fox News reporter Jana Winter won't have to testify about her confidential sources regarding the notebook of alleged theater shooter James Holmes – for now.

Arapahoe County District Judge Carlos Samour, Jr. issued an unexpected order late Monday stating that Winter’s case “is not ripe for ruling” and he will not decide whether the journalist must testify during a Wednesday hearing.

“If it is going to take several months, maybe Jana can get a little breather, get back to work and not have this on her front burner constantly,” said Winter's attorney, Dori Hanswirth.

Hanswirth admitted she was "surprised and relieved" by the order, but said that Winter will continue to fight the subpoena until it is dismissed.

Samour wrote in the order that he would not be comfortable forcing Winter to testify until he decides whether the notebook – which Holmes sent to his psychiatrist days before the shooting — will be allowed as evidence because it is protected under the physician-patient privilege. If Holmes uses a mental health defense, the notebook could be used as evidence, and Winter could once again face the decision of whether to testify or go to jail, according to the order.

“If the Court concludes that the notebook is privileged and inadmissible, it is difficult to discern why the credibility of one or more of the [officers involved with the notebook] would be important,” Samour wrote.

Winter's subpoena, however, still requires her to attend tomorrow's hearing in Colorado, where Holmes’ lawyers are expected to question one of the officials who had access to the information leaked to the New York-based journalist.

In a hearing last week, Samour said he would decide on Wednesday if Winter must testify about her sources. First Amendment advocates, including the Reporters Committee for Freedom of the Press, denounced the subpoena against Winter.

“A court order compelling Ms. Winter to divulge her confidential sources would frustrate the ability of reporters across the state to gather the information necessary to keep the public informed about the criminal justice system,” according to an affidavit filed by the Reporters Committee in the case.

Holmes’ attorneys subpoenaed Winter in December to try to learn who told her about the notebook Holmes sent his psychiatrist days before he allegedly shot and killed 12 people. Winter wrote an article on FoxNews.com about the notebook – which allegedly detailed Holmes’ plan – soon after the shooting. However, a sweeping gag order was already in place and the notebook was considered sealed evidence.

Holmes’ attorneys were concerned that the leak would bring into question the credibility of their witnesses and thus affect Holmes’ right to a fair trial. Defense attorneys unsuccessfully tried to learn who shared the information with Winter during a Dec. 10 hearing.