Aurora Theater Shooting

Fox News reporter Jana Winter not forced to testify today, ordered to come back in August

Fox News reporter Jana Winter was not forced to take the stand today and testify about her unnamed sources. Instead, the judge in the Aurora theater shooting case ordered Winter back on August 19.

By then, an attorney for suspect James Holmes said several outstanding issues should be resolved. She didn't elaborate, but the judge said he won't rule on the testimony issue until he decides whether a notebook Winter wrote about will be admitted as evidence, a decision that could depend on Holmes's plea.

On March 12, Judge William Sylvester entered a not-guilty plea for Holmes. Holmes's attorneys indicated that they were considering entering a plea of not guilty by reason of insanity but said they needed more time and information before deciding whether to do so. Sylvester said in March that he'd be open to considering a plea change at a later date.

Since then, the district attorney has announced that he's seeking the death penalty against Holmes, and Sylvester has handed the reins of the case over to Judge Carlos Samour. At a hearing on April 1, Samour reportedly told defense attorneys that the longer they wait to change Holmes's plea, the harder it will be to convince him.

That's relevant to the issue of whether Winter will testify because of the notebook, which was discovered in the mailroom at the University of Colorado Denver Anschutz Medical Campus, where Holmes was a neuroscience student. The package was addressed to Dr. Lynne Fenton, a psychiatrist who had seen Holmes -- and who reportedly warned the police of Holmes's "homicidal statements."

On July 25, five days after prosecutors say Holmes killed twelve people and injured seventy more by opening fire at the Century 16 theater in Aurora, Winter wrote a story that cited two unnamed law enforcement sources as saying the notebook contained details about how Holmes was going to kill people. "Among the images shown in the spiral-bound notebook's pages were gun-wielding stick figures blowing away other stick figures," it says.

Holmes's attorneys want to know who violated a gag order in the case and "leaked" that information to Winter. They have also 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. If that happens, Samour posited in a ruling released Monday, the notebook "may play a significant role in the case" -- which means the credibility of the police officers who testified at a court hearing in December that they were not Winter's source for the notebook story could be called into question.

Today, one of those officers, Aurora police Detective Alton Reed, took the stand for a second time. Back in December, Reed testified that he briefly looked inside the notebook. "I just sort of fanned through the pages with my thumb," he said. But he also testified that he did not speak to Winter or any other media about what he saw.

On April 1, attorneys for Winter pointed out that Reed hadn't been asked whether he spoke with anyone else about the notebook's contents, implying that Winter could have gotten her information second- or third-hand. So defense attorneys agreed to re-call Reed to ask him. This afternoon, he testified that the only person with whom he spoke was Sergeant Matthew Fyles, who previously testified that he was not the source.

Continue for more details about today's hearing in the Aurora theater shooting case. There may be more testimony to come. Winter's attorney, Dori Ann Hanswirth, said she'd like to call to the stand Mark Feldstein, a former investigative journalist who is now a journalism professor. Feldstein will expand on the views he offered in an affidavit (on view below), in which he argued that forcing Winter to reveal her sources would be "deeply harmful to Winter and to the news media generally."

But the defense asked for time to prepare for cross-examining Feldstein, and Judge Samour granted it. Defense attorney Rebekka Higgs also made a lengthy argument about why Winter should take the stand. Winter, she said, is the one person who knows whether any of the officers questioned about the notebook perjured themselves. "It's not the subject matter of the lie," she argued. "It's the willingness of that person to lie."

Samour threw out a hypothetical: Suppose someone did violate the gag order, but suppose I find that the result -- Winter's story about the notebook -- didn't violate Holmes's right to a fair trial. Should Winter be forced to reveal her sources?

Yes, Higgs said, because letting her off the hook sends the message that it's okay to violate gag orders. Plus, she said, Winter's story wasn't "a noble act" like investigating the Watergate scandal; the information she reported was "not necessary."

At the end of the hearing, the issue seemed no less resolved than it did on Monday, when Samour issued a ruling that concluded with this: "The defendant's credibility argument is not ripe for ruling. Therefore, Winter's motion to quash (the subpoena) 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."

Samour asked defense attorney Tamara Brady when he should order Winter back to court to resolve the matter. Brady offered the August 19 date, cryptically saying that other issues should be resolved by then, which will allow this issue to wrap up.

Read Feldstein's affidavit below. And stay tuned.

Affidavit of Mark Feldstein in Support of Jana Winter

For Westword editor Patricia Calhoun's take on the Winter subpoena, read her blog post: "Fox News' Jana Winter still on the hook in James Holmes case -- for doing her job."

Follow me on Twitter @MelanieAsmar or e-mail me at [email protected]

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Melanie Asmar is a staff writer for Westword. She joined the paper in 2009 and has won awards for her stories about education, immigration and epic legal battles. Got a tip? She'd love to hear it.
Contact: Melanie Asmar