A New York judge has signed a subpoena requiring a Fox News reporter to testify in Colorado about who gave her confidential information about a notebook James Holmes sent to his psychiatrist days before he allegedly opened fire on a crowded movie theater last July, killing 12 people.
New York County Criminal Court Justice Larry Stephen also sealed all records of last Thursday’s hearing after Jana Winter's lawyer requested that the reporter's home address be redacted from the files. It's not clear why Stephen sealed all the records. Winter's attorney, Dori Hanswirth, said she would appeal the subpoena and the sealing of the records.
Under the subpoena, Winter — who lives and works in New York — will have to testify before Arapahoe County Judge William Sylvester about who told her about the contents of Holmes' notebook, which was considered sealed evidence.
“Forcing a journalist to go [testify] under these circumstances, where the information sought is the disclosure of confidential newsgathering information, is a manifest hardship on her,” Hanswirth said in an interview. “If she did disclose confidential sources, her career could be destroyed.”
“This whole proceeding represents an enormous issue of great importance to the news media. The idea that a criminal defendant could, with so little evidence, be able to compel a crime reporter to travel to another state to provide testimony about a collateral issue in a case is very troubling," she said.
Soon after the notebook surfaced, Winter reported that it contained disturbing images and details of how Holmes was going to kill people. In her report, Winter cited an unnamed law enforcement official as her source.
But Sylvester had already placed a gag order on everyone involved in the case. In a Dec. 10 hearing before Sylvester, 14 law enforcement officials denied leaking the information to Winter. Holmes’ attorneys then said they would subpoena Winter in New York and bring her to Colorado to testify.
“Judge Sylvester found that since it seemed impossible to find who it was in Colorado that violated his order and affected the defendant’s right to a fair trial in Colorado, the only person to have that information was the person to whom those sealed materials were leaked,” said Daniel Arshack, one of Holmes' attorneys.
Hanswirth said Stephen dismissed all the concerns she raised at Thursday's hearing. According to Hanswirth, Stephen said it will be Sylvester’s duty to address those issues when Winter goes to Colorado. Under New York criminal law, a person in another state – in this case, Colorado – can ask a New York judge to compel a New York citizen to appear in that state's court, provided the citizen’s testimony is “material and necessary” and testifying will not cause the citizen undue hardship.
“Even if Jana Winter were a material and necessary witness – which she isn’t – but even if she were, we argued that New York public policy, protecting journalists from disclosing confidential sources, should take precedence over this material witness statute,” Hanswirth said.
Arshack said Stephen’s only duty was to address whether Winter is compelled to testify in Colorado. Stephen did not need to apply New York shield law, Arshack said.
“Our effort in New York was only to seek to have a subpoena issued for a witness to appear in another state to give testimony,” Arshack said. “When that witness appears there, they have a right to raise any objections they may have to giving that testimony.”
Hanswirth said they are planning to appeal the subpoena and the sealing of court records.
Sylvester will analyze Winter's involvement in the case and determine which, if any, shield law to apply. New York's shield law is one of the strongest in the nation and provides absolute privilege to all confidential information, including sources, a reporter receives. Colorado's shield law only allows a qualified privilege to confidential information.
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