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James Holmes case: Will U.S. Supreme Court weigh in on whether Fox reporter should testify?

Attorneys for Aurora theater shooter James Holmes have appealed to the U.S. Supreme Court to compel Fox News reporter Jana Winter to reveal her sources in court. Specifically, they're asking the high court to overturn a New York appeals court ruling that Winter, who is based in New York, is protected by that state's shield law. Holmes's attorneys want to know who violated a gag order in the case by speaking to Winter about the alleged contents of a notebook that Holmes mailed to a psychiatrist before the shooting.

To recap, Winter wrote a story on July 25, 2012 -- five days after the theater shooting -- that quoted unnamed law enforcement sources as saying that Holmes mailed a notebook "full of details about how he was going to kill people" to University of Colorado psychiatrist Dr. Lynne Fenton. Holmes's defense attorneys subsequently subpoenaed Winter in an attempt to learn the identity of those sources. Fox News vowed to "vigorously defend" Winter -- and has done so. In an affidavit, Winters detailed how the subpoena had affected her personally and professionally, noting that the situation has caused her more fear than the times that she had a gun pointed at her head and was chased with a chainsaw.

Thus far, Winter has not been ordered to take the stand. In December 2012, several law enforcement officials who handled the notebook testified at a hearing that they did not leak any information about the notebook's contents to the press.

Judge Carlos Samour in court in June 2013.
Judge Carlos Samour in court in June 2013.
Andy Cross/Denver Post

In a notice filed this week (it's on view below), Judge Carlos Samour, the jurist handling Holmes's criminal case, chided the attorneys who filed the Supreme Court appeal (also shared here) -- who, it should be noted, are different from Holmes's public defenders. Samour pointed out that while one of his orders was attached to the petition as an appendix -- with his signature, no less -- "it is not an accurate copy of the Court's order."

"It appears that the Order was retyped -- presumably to comply with the Supreme Court's format requirements. In the process, however, several words were inadvertently omitted and typographical errors were committed. Since Appendix E purports to be an accurate copy of the Court's order, the Court felt compelled to issue this Notice."

In other words, nobody autocorrects Judge Carlos Samour. Nobody.

Samour also issued several orders this week related to motions filed by the defense and the prosecution, which is seeking the death penalty against Holmes.

Continue to read about Samour's orders.   In summary, Samour has:

  • Denied a motion filed by Holmes's attorneys asking that jurors be allowed to view four Colorado prisons, including the prison that houses Colorado's death row and execution chamber, "to fully understand and appreciate its layout, methods and conditions." Result: Jurors won't be able to tour the prisons where Holmes might reside if he's found guilty.
  • Denied a motion filed by Holmes's attorneys seeking to exclude from trial any expert testimony from bomb technicians. Result: Bomb experts will be allowed to testify at Holmes's trial. Among those who are expected to appear is FBI Special Agent Garrett Gumbinner, who spoke at Holmes's preliminary hearing in January 2013 about the homemade bombs and other incendiary devices found in Holmes's Aurora apartment.
  • Denied a motion filed by Holmes's attorney seeking to exclude expert testimony regarding DNA analysis. Result: DNA experts will be allowed to testify at Holmes's trial.
  • Granted a motion filed by prosecutors to exclude evidence about other murder cases from any capital sentencing phase of Holmes's trial. Result: If Holmes is found guilty and jurors must then decide whether to sentence Holmes to prison for life or to execute him, his attorneys will not be allowed to argue that a death sentence would be "disproportionate" to the sentences imposed in other Colorado murder cases.
  • Granted in part and denied in part a motion filed by prosecutors to exclude "residual doubt" evidence from any capital sentencing phase of Holmes's trial. Result: Holmes's attorneys will not be allowed to introduce any evidence in the sentencing phase of the trial for the sole purpose of raising doubt about whether Holmes is really guilty.

The full motions are on view below.

James Holmes and defense attorney Daniel King in court in June 2013.
James Holmes and defense attorney Daniel King in court in June 2013.
Andy Cross/Denver Post

Holmes's trial is scheduled to begin in October. He has pleaded not guilty by reason of insanity to murdering twelve people and injuring seventy more by opening fire at the Century 16 movie theater in Aurora on July 20, 2012.

However, the trial could be delayed if Holmes's defense attorneys decide to challenge a recent ruling by Samour granting prosecutors' request to have Holmes undergo a second mental evaluation pursuant to his insanity plea. Prosecutors claimed that the first evaluation contained "numerous deficiencies" and that the psychiatrist who completed it had an "unfair bias." Samour agreed that the evaluation was "inadequate" and ordered Holmes to undergo a second by a "neutral expert" chosen by the Colorado Mental Health Institute at Pueblo, or CMHIP. According to an order filed this week, CMHIP has chosen that expert, but his or her name is blacked out of the document (which is on view below).

Holmes's attorneys have until Friday, March 14 to register their objections.

Continue to read Samour's orders and the appeal to the U.S. Supreme Court.  

Appeal to U.S. Supreme Court

Notice Re: Pleading Filed in the U.S. Supreme Court

Order Appointing Psychiatrist Selected by CMHIP

Continue to read Samour's other orders.  

Order Re: Motion for Jury View of Prisons

Order Re: Motion to Preclude Expert Testimony of Bomb Technicians

Order Re: Motion to Preclude Expert Testimony Concerning DNA

Order Re: Motion Exclude Evidence of Other Murder Cases

Order Re: Motion to Exclude Residual Doubt Evidence

More from our Aurora Theater Shooting archive: "Aurora theater shooting trial set for October 14, but could it be delayed again?"

Follow me on Twitter @MelanieAsmar or e-mail me at melanie.asmar@westword.com

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