The judge in the James Holmes case will allow Holmes's defense attorneys to subpoena a New York-based Fox News reporter who first reported that the accused Aurora theater shooter sent a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist. The reporter, Jana Winter, quoted unnamed law enforcement sources in the story. Holmes's attorneys are trying to learn who "leaked" the information.
A package containing the notebook was discovered in the CU mail room on July 23, three days after Holmes is accused of opening fire at a midnight showing of The Dark Knight Rises, killing twelve people and injuring seventy more. The package was addressed to Dr. Lynne Fenton, a psychiatrist who had seen Holmes. Witnesses have said it was from Holmes and contained both a notebook and burned money.
At a hearing in December, Holmes's attorneys attempted to find the source of the leak by questioning several law enforcement officers, including University of Colorado police chief Doug Abraham. A few, including Aurora police detective Alton Reed, admitted to leafing through the pages of the notebook but said they didn't linger on any particular page. "I just sort of fanned through the pages with my thumb," Reed said in court.
None of the witnesses said they spoke to the media about the notebook or its contents.
In a motion filed Thursday (and on view below), Holmes's attorneys argue that because they've been unable to find the source any other way, Winter "has become a material and necessary witness in this case and her notes are material and necessary."
Judge William Sylvester agreed. A gag order prohibiting law enforcement officers from sharing information about the case has been in effect since July 23. In a certificate (also on view below), Sylvester wrote that if law enforcement sources did indeed speak to Winter, "then due to the fact that all who had access to the package denied under oath that they spoke to her...perjury in the first degree may be implicated."
Winter "will be required to spend three days in travel and testimony in this case," Sylvester wrote. He added that the defense will pay for her round-trip plane ticket, transportation to and from the airport and room and board in Colorado.
A New York judge will review Sylvester's certificate. That judge must find also find that Winter is a "material and necessary" witness in order to compel her to testify in Colorado.
Sylvester has set aside several days beginning February 4 to debate this matter in court.
Continue to read Holmes's attorneys' motion about Winter, prosecutors' response and the judge's certificate.
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More from our Aurora Theater Shooting archive: "Aurora Century theater reopens six months after shooting with speeches, The Hobbit."Follow me on Twitter @MelanieAsmar or e-mail me at firstname.lastname@example.org