Fox News reporter Jana Winter won't face such a tough decision tomorrow after all. The judge in the Aurora theater shooting case has delayed a ruling on whether to compel Winter to testify about her confidential sources until after he decides whether to allow a notebook that suspect James Holmes mailed to a psychiatrist to be admitted as evidence in the case.
Winter wrote a story quoting unnamed law enforcement sources as saying the notebook contained "details about how he was going to kill people."
Holmes's attorneys want to know who violated a gag order in the case and "leaked" that information to Winter. At a hearing in December, they attempted to find the sources by questioning several law enforcement officers who had access to the notebook.
The notebook was discovered in the mailroom at the University of Colorado Denver Anschutz Medical Campus, where Holmes was a student.
The package was addressed to Dr. Lynne Fenton, a psychiatrist who had seen Holmes. Witnesses have said it contained a notebook, a post-it note with a drawing on it and burned money. A few officers 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," Aurora police detective Alton Reed testified in December. Neither he nor any of the other officers said they spoke to the media about the notebook or its contents.
But Judge Carlos Samour (who recently took over the case from Judge William Sylvester) pointed out that attorneys did not ask Reed whether he spoke to anyone else about the notebook's contents, noting that Winter could have gotten her information second- or third-hand. At a hearing scheduled for tomorrow afternoon, defense attorneys are expected to call Reed to testify and ask him that very question.
If the questioning of Reed doesn't net any answers, Winter could still face the choice to either testify and reveal her sources or refuse to testify and go to jail. However, Samour decided this week that the issue of whether to require Winter to testify is not yet "ripe."
Holmes's attorneys have argued that the notebook's contents are protected by doctor-patient privilege. That privilege could be waived, however, if Holmes decides to plead not guilty by reason of insanity. At this point, Holmes's plea remains "not guilty."
If Holmes does change his plea to not guilty by reason of insanity, Samour posited that the notebook "may play a significant role in the case." If that's true, then the credibility of the police officers who testified about the notebook at the December hearing could be an important issue. Samour, and Sylvester before him, noted that if one of those officers was indeed the source of the leak, then that means they perjured themselves on the witness stand when they testified that they weren't. If Holmes doesn't plead insanity, the notebook and the officers' credibility will likely be less of an issue.
"The record is...deficient to afford the Court an adequate opportunity to determine whether the defendant's interest in challenging the credibility of one or more of the December 10 witnesses is 'a strong interest' that outweighs the interests under the First Amendment of Winter in not disclosing her confidential sources," Samour wrote.
"The defendant's credibility argument is not ripe for ruling," Samour added. "Therefore, Winter's motion to quash (the subpoena of Winter to testify) and the defendant's motion for sanctions (against whomever leaked information to Winter) are both deferred until the Court determines the admissability of the notebook. The April 10 hearing remains set and Winter's presence at that hearing continues to be required."
In addition, Samour noted that the New York-based Winter will likely be required to appear in court in Colorado one more time after tomorrow before the issue is resolved.
Also filed this week were affidavits from the executive director of the Colorado Broadcasters Association, the executive director of the Colorado Press Association and the executive director of the Reporters Committee for Freedom of the Press. All three support Samour quashing Winter's subpoena. They argue that forcing a reporter to reveal her sources will have a chilling effect on news gathering.
"Any diminution in reporters' ability to gain the trust of their sources...would significantly compromise the ability of (Colorado Press Association) member newspapers to provide such reporting to the public," wrote director Samantha Johnston.
Read Samour's ruling below -- and stay tuned for updates from tomorrow's hearing.
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More from our Aurora Theater Shooting archives: "Skyrim and Oblivion, fantasy role-playing games, part of James Holmes inventory."Follow me on Twitter @MelanieAsmar or e-mail me at firstname.lastname@example.org