New York appeals court allows Colorado subpoena on Fox News reporter to stand

Nicole Lozare | Reporter's Privilege | News | August 20, 2013

A Fox News reporter lost another round in her battle to keep her sources confidential regarding her exclusive story about the notebook of accused Colorado theater shooter James Holmes.

The Supreme Court Appellate Division (1st Dept.) ruled Tuesday that a New York judge was correct to enforce a Colorado subpoena compelling Jana Winter to testify in the Holmes trial.

The court rejected Winter's argument that the subpoena should not be enforced because Colorado law does not provide the same strong reporter's privilege that New York does. "The narrow issue before the Supreme Court was whether respondent should be compelled to testify, and privilege and admissibility are irrelevant for this determination." The Supreme Court is a trial-level court in New York.

Two judges dissented. "I conclude that New York’s expressed public policy in favor of providing absolute protection for reporters, so that they are not required to disclose the identity of their sources, is paramount here, and requires the rejection of petitioner’s application," Judge David Saxe argued. "Even if we assume that there might be some situations in which that protection should be permitted to give way to a petitioner’s right to a fair trial, this is not such a case," because Winter's evidence is "likely to be irrelevant" in Holmes' trial.

Separately on Monday, a Colorado judge ordered Winter to return to court in September for possible questioning about the story she wrote in July 2012 regarding the notebook that Holmes sent to his psychiatrist previewing the shooting spree that left 12 moviegoers dead. The subpoena for Winter, who appeared in the Colorado courtroom, was set to expire Monday.

The defense in the Holmes case sought the subpoena for Winter, who lives and works in New York. The defense wants the journalist to testify about her two confidential sources, believed to be law enforcement officials. When Winter published her story on FoxNews.com days after the mass shooting, a Colorado judge had already issued a strict gag order on all the parties and the notebook was considered sealed evidence. A number of law enforcement officials were called to the court to swear that they did not speak to the Fox News reporter about the notebook. When that failed to out the leaker, the Colorado court asked a New York court to issue the subpoena compelling Winter to come to Aurora, Colo., to testify.

In March, judge Larry Stephen in New York City signed the subpoena for Winter and also sealed all records from the hearing after the reporter’s lawyer requested that Winter’s home address be redacted from the files. It's not clear why Stephen sealed all the records. On Tuesday, the New York appeals court also ruled that the records should be unsealed.

In May, the Reporters Committee for Freedom of the Press and 42 news organizations filed a friend-of-the-court brief arguing that the New York court should not have allowed a Colorado subpoena to be served on Winter because New York's strong public policy protecting reporters' sources would not be satisfied under Colorado law.

"In the absence of even a cursory consideration of the public policy protecting such journalist-source relationships embodied in New York’s Shield Law, journalists would constantly be at risk of being subpoenaed," the brief argued. "The strong public policy in averting that outcome should have been considered and warrants this Court’s reversal of the lower court decision.”

Related Reporters Committee resources:

· Brief: Affidavit in support of Fox News reporter Jana Winter