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Colorado judge delays decision on whether Fox News reporter will be ordered to testify

  • JanaWinter_Colorado041013.JPG

    April 10, 2013: FoxNews.com reporter Jana Winter leaves a district court following a hearing for Aurora theater shooting suspect James Holmes in Centennial, Colo.FNN

  • JanaWinter_Colorado041013_2.jpg

    April 10, 2013: FoxNews.com reporter Jana Winter leaves a district court following a hearing for Aurora theater shooting suspect James Holmes in Centennial, Colo.FNN

  • Jana.jpg

    FILE: Jana Winter, who says she will protect the identity of her sources, is not expected to testify Wednesday.

A FoxNews.com reporter who is fighting a court motion demanding she reveal her sources from story on last year's Colorado movie theater massacre was spared jail time at least until August when a judge postponed a decision on the matter Wednesday.

Jana Winter's exclusive July 25 story revealed the existence of a notebook that accused mass murderer James Holmes sent to his psychiatrist in the days before the Aurora, Colo., massacre on July 20 that left 12 dead and 58 injured.

Holmes' lawyers claim Winter's sources violated a gag order and may have undermined his right to a fair trial. Winter's lawyers have argued that a Colorado shield law and the First Amendment protect her from having to reveal her sources.

Arapahoe County District Judge Carlos Samour Jr. had filed a statement on Monday saying it is still too early to decide on the matter because he had yet to rule whether the notebook even would be admissible as evidence.

Samour, who inherited the case from the judge who originally issued the gag order, William Sylvester, said on Monday that Winter may not be forced to testify if the notebook is excluded as evidence.

During Wednesday's hearing, Detective Alton Reed testified he did not speak with anyone regarding the notebook. Reed first testified in December that he wasn't the source of Winters' story, but he wasn't asked at that time whether he spoke to anyone else about Holmes' notebook.

Also during Wednesday's hearing the judge listened to arguments from defense lawyers and Winter's legal team.

Winter's attorney Dori Ann Hanswirth asked to bring to the stand Mark Feldstein, a journalism professor at the University of Maryland who had filed an 18-page affidavit in support of the veteran reporter.

Defense attorney Rebekka Higgs argued that they met the three criteria required for Winter's testimony to be relevant and added that now that Holmes' case could include the death penalty, he is entitled to a heightened level of due process.

"It is a fact that a person lied," Higgs said during the proceedings referring to one of the officers that took the stand and argued that the credibility of witnesses who already testified could be impeached by Jana's testimony.

Samour acknowledged that someone may have violated the gag order, but he questioned whether the infraction was enough to trump the First Amendment interests of Winter and the public.

Higgs then took a swipe at Winter, saying, "This is not Watergate. We don't need investigative journalism for this."

The defense attorney continued by saying that the public did not need the information in her story and that Winter had assumed the role of arbiter of information when that was not her role.

Higgs then got into a terse back-and-forth with Samour after saying, "The First Amendment interests here are not substantial."

At one point during the exchange, Higgs says that if the judge rules that Winter's testimony is not substantial it will send a message that will tell people, "Hey, I can put out there whatever I want."

"So are you saying that anytime something comes out that violates a gag order we have to pierce the journalists shield?" she asked.

"If I'm finding (Holmes') rights aren't affected, no prejudice, then so what?" replied Samour who ruled that Winter's subpoena to appear would be continued until Aug. 19, when she is due back in court. 

Samour said to Winter that it will be the last time she will have to appear in the Colorado court as he doesn't think it is fair to have her keep coming back and forth from New York City, where she resides.

Winter did not testify Wednesday. She has made clear in court filings that she will protect the identify of her sources if she is called to the stand.

"If I am forced to reveal the identities of persons whom I have promised to shield from public exposure, simply put, I will be unable to function effectively in my profession, and my career will be over," according to an affidavit filed earlier with the court.

The Colorado Press Association, the Reporters Committee for Freedom of the Press and the Colorado Broadcasters Association have all filed affidavits with the court, asking that Winter not be required to testify. The American Civil Liberties Union and the Washington, D.C.-based National Press Club have also asked Judge Samour to dismiss the defense bid to force Winters’ testimony.

Numerous media organizations and First Amendment groups have spoken out in support of Winter. The Colorado Press Association, the Reporters Committee for Freedom of the Press and the Colorado Broadcasters Association have all filed affidavits with the court, asking that Winter not be required to testify. The American Civil Liberties Union and the Washington, D.C.-based National Press Club have also issued statements on Winter’s behalf.

"This seems nothing more than a witch hunt designed to silence the media on this case," according to a statement issued Tuesday by the Society of Professional Journalists. "Since Winter's situation does not meet the exceptions made in Colorado's shield law, she should not be compelled to reveal her sources."

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