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Subpoena Quashed for Reporter Ordered to Reveal Sources in Colo. Mass Murder Case

NEW YORK (CN) - New York's strong reporter shield laws protect Fox News journalist Jana Winter from having to reveal her sources at the mass murder trial of James Holmes, the state's highest court ruled Tuesday.

The ruling by the New York Court of Appeals is a major triumph for the New York-based reporter, who has been under subpoena in Colorado for most of the year.

In January, a judge in Arapahoe County, Colo., where Holmes is being tried, found enough evidence to suggest Winter had violated a gag order by publishing quotes from unnamed law enforcement officials, and demanded that she testify.

Winter's story, which was published shortly after Holmes allegedly killed 12 people in a movie theater in July 2012, claimed that Holmes had sent his psychiatrist a notebook that contained violent pictures.

After the subpoena was issued, it was first certified by a Manhattan Supreme Court judge, and the First Judicial Department of the Appellate Division affirmed its enforcement in a split decision in August.

But in a majority opinion that invokes the state's long history of protecting a free press, Court of Appeals Associate Judge Victoria Graffeo called the possibility of a New York reporter being exposed in Colorado was an offense to her state's laws.

"As we have explained, protection of the anonymity of confidential sources is a core - if not the central - concern underlying New York's journalist privilege, with roots that can be traced back to the inception of the press in New York," the opinion says.

"Although there are uncertainties concerning the application of the outer reaches of our statute, particularly the scope of the qualified privilege for nonconfidential news which must be determined on a case-by-case basis ... there is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source," Graffeo continues. "And that concern is directly implicated here given that the only purpose for Winter's testimony is to ascertain who leaked the information regarding the discovery of the notebook. Indeed, absent that information, there is no material or necessary testimony Winter could offer in connection with the Colorado proceeding.

"Moreover, as a New York reporter, Winter was aware of - and was entitled to rely on - the absolute protection embodied in our Shield Law when she made the promises of confidentiality that she now seeks to honor," the ruling states.

"Given that this is the case, and in light of the significant disparity between New York and Colorado law, she was entitled to have the Shield Law issue adjudicated in New York before the subpoena was issued, even though it relates to testimony sought in the courts of another state. We therefore conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy - a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world."

The majority portrayed Colorado's reporter shield law as lax compared to New York's sterling example.

"Colorado offered no privilege to reporters until 1990 and its current Shield Law grants only qualified, as opposed to absolute, protection - even in relation to the identity of sources of confidential news," the opinion states.

"Essentially, the Colorado courts employ a balancing test to determine whether a reporter can be required to reveal an anonymous source - a procedure in stark contrast to the absolute privilege cloaking that information in New York," the majority added.

In a dissenting opinion, Judge Robert Smith argued that because Winter was in Colorado when she spoke to her sources, the application of New York's shield laws was "an excessive expansion of New York's jurisdiction."

The majority disagreed, finding Winter's location irrelevant.

"New York journalists should not have to consult the law in the jurisdiction where a source is located or where a story 'breaks' (assuming either is ascertainable) in order to determine whether they can issue a binding promise of confidentiality," the court wrote.

The Court of Appeals reversed the Appellate Division's decision to uphold the subpoena.

Nearly 50 media organizations, including Courthouse News, were listed as amici curiae on Winter's behalf.


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