Fox News journalist argues for New York shield law protection in Holmes trial

A Fox News reporter is awaiting a judicial panel's decision on whether a New York judge was correct to issue a subpoena that compelled her to testify in a Colorado courtroom about her confidential sources in a story relating to accused movie theater shooter James Holmes.

Jana Winter, a reporter for FoxNews.com, reported soon after the July massacre that Holmes had filled his notebook with drawings of the planned shooting and sent it to a psychiatrist. She attributed the information to two anonymous law enforcement sources.

Arguing before a five-judge panel on Wednesday, Holmes’s lawyers said that the leakers must be revealed and sanctioned for violating a sweeping gag order issued soon after the July 2012 shooting that left 12 movie theatergoers dead.

Meanwhile, Winter’s attorneys said that she should not have to appear in Colorado court, citing New York’s shield law, which provides absolute privilege for journalists’ confidential sources and reporting materials. They urged the panel to rule that a lower court judge was wrong to sign the subpoena.

“When a judge in New York was requested to sign a subpoena to a journalist to require her to travel outside the state and have to disclose confidential newsgathering information in a jurisdiction that does not provide the same absolute privilege that journalists enjoy in New York, that judge, in our view, violated the strong public policy, and he should not have issued the subpoena,” said Dori Ann Hanswirth, one of the lawyers representing Winter. “He should not have made her go to Colorado, where she is facing very serious consequences that she would never have to face in New York.”

If New York quashes the subpoena, Colorado will not have jurisdiction to subpoena Winter.

While the New York court weighs whether to quash the subpoena, the judge in Holmes’s Colorado trial is considering a similar motion and has asked lawyers to file briefs on whether the identities of the leakers are relevant to “substantial issues” in the case. Holmes’s lawyers argue that unmasking the sources would cast doubt on the credibility of these officers, which in turn could influence the outcome of the trial, according to court documents.

In April, the Colorado judge delayed consideration of the subpoena against Winter because he had not decided whether the notebook would be admitted as evidence. But the notebook became part of the record earlier this month, when Holmes entered a plea of insanity.

Winter is scheduled to appear in Colorado court in August. Hanswirth said she is hopeful that the New York court will make its decision before then.

Daniel Arshack, who represented Holmes at yesterday's hearing, was not immediately available for comment.

The New York proceeding may be Winter's best chance to avoid being ordered to disclose her sources, since Colorado’s shield law provides less protection than New York's. If Winter ultimately is ordered to reveal the leakers in Colorado and refuses, she might face jail time for contempt of court.

The Reporters Committee for Freedom of the Press submitted a friend-of-the-court brief supporting Winter, arguing that the New York court should apply the state’s policy of allowing reporters to protect their confidential sources.

Related Reporters Committee resources:

· New York – Privilege Compendium

· Colorado – Privilege Compendium