Published April 05, 2013
Fox News reporter Jana Winter faces jail for doing her job too well. She's not been accused of any crime, only of protecting the identity of confidential news sources while reporting an important development in a major national story. A Colorado court has now compounded a pending murder trial with a second legal case, one with profound First Amendment ramifications.
The story started on July 20, 2012, when James Holmes walked into a midnight showing of the Batman film “The Dark Knight Rises” in an Aurora, Colo., theater and unleashed a hail of gunfire that left 12 people dead and 58 injured. The horrific shooting spree left the nation stunned and looking for answers.
The Story and Sources
Fox News sent Winter, a veteran reporter based in New York, to Colorado to cover the shooting and its aftermath. Winter soon broke an exclusive story revealing that, prior to the shooting, Holmes had sent a package to a University of Colorado psychiatrist that included a notebook "full of details about how he was going to kill people," according to one of Winter’s sources. Her July 25 article on FoxNews.com also reported that the notebook contained illustrations of a massacre, including drawings of gun-wielding stick figures shooting other stick figures.
The package, sent to Dr. Lynne Fenton, is now in the hands of Holmes' defense attorneys, who have not released any further details on its contents.
Winter's story cited unnamed law enforcement sources and drew an immediate reaction from Holmes’ attorneys. They accused the government of violating various gag orders that Arapahoe County District Court Judge William Sylvester had issued in the days following the shooting and asserted that the disclosures violated Holmes' right to a fair trial. Further, they sought the judge’s help in hunting down and punishing the sources of the story.
Sylvester allowed Holmes’ lawyers to launch an investigation, which included calling more than a dozen law enforcement officers to the witness stand. Each officer denied having talked to the media. When superficial questioning failed to uncover the leaker, attorneys for Holmes shifted their focus to Winter, hoping to force her to reveal her sources.
Legal Wrangling in New York and Colorado
In January, Holmes' defense team successfully petitioned Sylvester to begin the process to compel Jana Winter to testify in the Aurora courtroom, produce her notes and identify her sources. Winter lives in New York where she works for Fox News, so a New York judge's sign-off was required.
Justice Larry Stephen of Manhattan signed a subpoena, but Winter’s attorney, Dori Ann Hanswirth, has filed papers to appeal that decision.
“We hope that the appellate court will decide our request for a stay soon so that Jana is not required to return to Colorado until after her appeal is decided,” Hanswirth said. “New York’s strong commitment to protecting confidential sources is at stake, and Jana shouldn’t have to travel out of state to testify before a New York appeals court has the chance to say whether the law requires her to do so.”
“The subpoena of Ms. Winter is absolutely troubling,” said University of Colorado at Boulder Journalism Professor Len Ackland. “An important way that journalists inform the public – their obligation as self-appointed, self-anointed public servants – is to have sources tell them what is really happening on matters of public interest. Such subpoenas clearly can keep journalists from doing their work as well as intimidating potential sources.”
After a flurry of motions and proceedings, Winter appeared in Sylvester's Centennial, Colo., courtroom on April 1, a day which saw several developments in Holmes’ murder case. Immediately after District Attorney George Brauchler announced that the State would seek the death penalty for Holmes, Sylvester stepped down, saying the extra demands of a capital case would conflict with his duties as the district's chief judge. The case fell to Judge Carlos Samour Jr., who immediately heard arguments as to whether Winter should be compelled to reveal her sources.
Samour has served as a prosecutor and private attorney in Colorado and has been a district judge for six years in Arapahoe County. He immigrated from El Salvador as a 13-year-old and graduated from Columbine High School, the scene of another mass shooting that shook the Centennial State, back in 1999.
He has been lauded by both prosecutors and defense attorneys as a thoughtful judge. Indeed, a review by the Colorado Office of Judicial Performance Evaluation said: “Lawyers and non-lawyers alike, including members of this commission, who have observed Judge Samour in his courtroom, have found him to be very friendly, efficient and professional. He is praised for his knowledge of the law and his fairness.”
Colorado's Shield Law
Colorado is one of 32 states with Shield Laws protecting reporters from being forced to reveal their sources. Media and First Amendment advocates say such laws are crucial to allowing journalists to do their jobs, and that without them, people with information of public interest would be afraid to speak and news outlets would be chilled from informing the public.
In Colorado, there are other circumstances in which the Shield Law may not protect a reporter from divulging to a court information or its sources. First, the information has to be directly relevant to a substantial issue in the case. Second, it must be shown that the information cannot be obtained by any other reasonable means. Finally, the interest of the party seeking the information must outweigh both the First Amendment rights of the reporter and the public’s right to receive news information. All three of these conditions must be met.
"Shield laws don't just protect reporters. They ensure the public has access to critical information," Hanswirth said.
April 1 Hearing
In the hearing on Monday, Samour heard lengthy arguments from Holmes’ defense attorney Rebekka Higgs, as well as Winter's attorney, Ms. Hanswirth. Among many legal points, Hanswirth argued that the issue relating to Holmes' notebook was in no way a substantial issue to the proceeding, especially considering the hundreds of news reports on the case and that Holmes’ defense attorneys had even publicly announced that he might plead guilty if the State did not seek the death penalty.
Holmes was present throughout the proceeding, sitting silently as attorneys argued about a notebook he has never denied filling with bizarre drawings or sending to a psychiatrist who once treated him. While the Fox News reporter may find herself jailed for protecting her sources, Holmes is under no legal obligation to testify at his trial and cannot be punished for his silence.
Samour himself stated that the subpoena to Winter presented her with a “Hobson’s Choice.” If forced to testify, Winter would either reveal her confidential sources in the nation's highest profile trial – perhaps destroying her career as an investigative reporter – or spend up to six months in jail, according to Judge Samour.
“Sources won’t tell journalists anything if they can’t be guaranteed confidentiality,” said Colorado State University Journalism Professor Patrick Plaisance. “That would have a chilling effect. That ability [to protect sources] needs to be upheld.”
Samour concluded that the defense attorneys had failed to properly question police detectives who had seen the notebook, so he deferred a decision until April 10. At that point, another detective will testify and Samour will decide if Winter must take the stand and face that difficult choice.
Winter's attorney has stated in court that if she is put on the witness stand, Winter will not answer questions related to the identification of her sources. She would rather go to jail – for doing her job.