Reporter Must Testify in Colorado Massacre Case

     (CN) – Fox News reporter Jana Winter must testify under subpoena at pretrial proceedings in Colorado for alleged mass murderer James Holmes, a divided New York appeals court ruled.
     The journalist, who claimed in an exclusive that Holmes had sent his psychiatrist a notebook containing violent images before killing 12 people in a movie theater in Aurora, had been ordered to appear in Arapahoe County Court after a judge there found enough evidence to suggest that law-enforcement officials had violated a court-issued gag order in the wake of the shooting.
     Winter has vigorously fought the order in both Colorado and New York, where she works, but a Manhattan Supreme Court judge certified the subpoena in March.
     At an April 1 pretrial hearing for Holmes, Winter’s lead counsel, Hogan Lovells attorney Dori Hanswirth, told the court that Winter’s career was suffering because the subpoena was “hanging over her head.”
     Hanswirth said state and federal shield laws protect Winter’s sources, and claimed that Holmes was not prejudiced by her story in the first place.
     But the First Judicial Department of the Appellate Division dealt a significant blow to the reporter’s defense Tuesday when it affirmed enforcement of the subpoena.
     Any privileges afforded to Winter by New York’s reporter shield law were irrelevant because the subpoena was issued in Colorado, according to the ruling from a three-justice majority.
     “We note that New York’s Shield Law … continues to represent a strong public policy and the long history of vigilantly safeguarding freedom of the press,” Justice Darcel Clark wrote for the court. “The dissent argues that respondent’s appearance was ordered to identify law enforcement personnel, which requires the disclosure of her confidential sources. However, the facts presented on this record do not establish with absolute certainty that the Colorado District Court will require the disclosure of confidential sources. As such, it calls into question whether this matter truly embodies a conflict between evidence privileged under New York law and evidence that is unprotected in the demanding state. It is not certain that respondent will forfeit privilege protections under the law of the demanding state. … Moreover, even if respondent asserts privilege under the New York Shield Law, privilege is irrelevant to this court’s determination since admissibility and privilege remain within the purview of the demanding state rather than the sending state.”
     The two dissenting justices said New York’s relatively strong shield law should be applied considering what is at stake for Winter and other journalists.
     “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,” Justice David Saxe wrote, joined by Justice Rolando Acosta. “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. The identity of respondent’s confidential sources is likely to be irrelevant to petitioner’s defense at trial, because given the number of police department employees who knew about petitioner’s notebook, it is quite likely that respondent’s sources are not the ones the prosecutor will call to testify regarding the notebook. Even if a confidential source turned out to be a prosecution witness, and petitioner could use that individual’s violation of the court’s gag order to impeach his or her credibility, impeachment of a witness regarding the notebook and its contents is at best a secondary issue in the murder prosecution. The public policy of protecting a reporter’s confidential sources and preventing her from being held in contempt and jailed for failure to disclose the information, should not be ignored merely so that petitioner is provided with grounds for impeaching the credibility of two individuals who might be called to testify regarding a secondary piece of evidence, particularly since the contents of the notebook speak for themselves.”
     It is a “near certainty that the Colorado court will reject respondent’s privilege claim and compel her to provide the identities of her confidential sources, leaving her to face either a contempt order and incarceration, or the loss of her reputation as a journalist,” Saxe added (emphasis in original). “At that point, it will be too late for this court to address whether respondent is protected by our Shield Law.”
     Winter also succeeded in showing that the subpoena has caused her “undue hardship,” according to the dissent.
     Despite exhaustive questioning by Holmes’ defense, none of the hundreds of law-enforcement officials who were involved in the investigation have admitted to being Winter’s sources.
     Nearly 50 media outlets including Courthouse News were listed as amici curiae on Winter’s behalf.

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