The 16-month saga of Fox News reporter Jana Winter is about to reach its boiling point on Tuesday, when the New York Court of Appeals will decide whether a New York state law protects Winter from revealing confidential sources in her reporting on accused Aurora, Colo., theatre shooter James Holmes.
On July 25, 2012, Winter wrote an exclusive story that detailed a chilling notebook Holmes mailed to a University of Colorado psychologist that was “full of details about how he was going to kill people.” That came before he allegedly killed 12 people and injured dozens in a shooting during a midnight showing of “The Dark Knight Rises” on July 20, 2012.
The problem is that the notebook wasn’t intended to be public, and the defence contends that its release is interfering with their ability to get a fair trial. They want her to testify at a hearing that would get to the bottom of who leaked the information in the notebook.
Now, the New York Court of Appeals’ decision as to whether Winter will be compelled to testify could have a profound effect on newsgathering and protections for journalists — all in the name of doing their job.
Dori Hanswirth, one of Winter’s lawyers, told Business Insider that there’s not much of a precedent for Winter’s case.
“This is sort of a wrinkle in all that,” Hanswirth said. Hypothetically, “if you’re talking to a source in Iowa and it turns out there’s a case there, can you be hauled out and lose those protections?”
That’s what Winter is facing in Colorado. New York has a shield law for journalists that protects reporters from having to reveal their sources no matter how crucial the information may be to the investigation. The law states that the “threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information.”
Colorado also has a shield law, but it not nearly as expansive as New York’s. It makes an exception that information can be subpoenaed if it is “directly relevant to a substantial issue.”
Holmes’ lawyers have argued that Winter’s report will not allow them a fair trial, and that she should be forced to testify. They argue that the source violated a gag order, and they want to find out the source who leaked the notebook to Winter. So far, 14 law enforcement officials have denied being her source.
A Colorado judge decided that Winter was a necessary witness to the trial. A Supreme Court (the term for a trial court in New York state) judge in Manhattan subsequently decided that she should testify in Colorado. The Appellate Division of the state Supreme Court upheld this decision. But it was a split, 3-2 decision in which two judges wrote a strongly opined dissenting opinion.
For the Colorado subpoena to be enforced, Colorado needs the approval of New York judges.
Hanswirth said that Winter will not reveal her sources — meaning that if she is compelled to testify, she could face jail time.
If the New York Court of Appeals rules against Winter, it would set the precedent that the shield law “can really be gutted,” Hanswirth told Business Insider. “Who only reports on things that happen in New York State? … So, the fear in Jana’s mind is very real.”
Whatever protection she is afforded by the courts would only apply in New York state. Theoretically, if she were to travel, she would be at the same risk as anyone to be subpoenaed.
“If the question is whether she is at risk to be subpoenaed in Colorado if she appears there voluntarily, I think the answer is yes,” Hanswirth said.
Winter’s case has gathered scant attention in the media, but interest has picked up at a crucial time. The Albany Times-Union, which is located in the same capitol city as the Court of Appeals, wrote on Monday of the potential drastic implications in the case.
Fox News’ Judith Miller, who spent 85 days in jail in 2005 protecting confidential sources, lamented that the case has gotten “all too little attention, given the free press issues at stake”:
Given the broader assault on journalists and a free and independent press every American should know Jana’s name.
All journalists, indeed, all Americans who believe that democracy depends in part on a free and independent press have a stake in the outcome of this fight. Now is the time to support Jana Winter.
The Society of Professional Journalists also got involved on Monday, calling on the Court of Appeals to “quash” Colorado’s subpoena.
“Winter deserves the protections of New York,” SPJ President David Cuillier said. “Just because Colorado can’t get its act together does not mean journalists elsewhere should be punished.”
In his own case, Holmes has pleaded not guilty by reason of insanity. His murder trial is scheduled to commence in February.
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