In a strongly worded opinion that backed a robust interpretation of reporters’ rights to protect confidential sources, New York state’s highest court has ruled in favor of a Fox news reporter and said she does not have to appear in a Colorado court seeking her testimony in connection with the trial of James E. Holmes, accused in the mass shooting that left 12 dead in a suburban Denver movie theater.

In 4-3 ruling released on Tuesday, the New York Court of Appeals held that the state’s shield law protects New York-based reporter Jana Winter and rejected an effort by the Colorado courts to have her return to testify. Holmes, the defendant in the murder case, wanted Winter to identify the law enforcement officers who told her about his notebook, which depicted violence.

Days after the shootings, Winter reported on the Fox News website that Holmes sent a notebook to his psychiatrist containing scribblings of stick figures being shot and a written description of an upcoming attack. Authorities have since confirmed that Holmes did send the notebook, but they have never publicly described its contents.

Holmes’ defense team had wanted Winter to identify the law enforcement officials because the source may have lied about whether he or she had violated a court-imposed gag order. If it knew the name, the defense could then use that information to impeach the witness on the stand.


As a practical matter, however, the New York court’s ruling will likely have a minimal impact on Holmes’ fate, which will hinge on whether he was legally sane at the time of the shooting.

Holmes is accused of invading a movie theater in Aurora, Colo., during the midnight showing of the “The Dark Knight Rises.” Holmes is charged with opening fire in the theater, killing 12 and injuring more than 70.

The prosecution has said it is seeking the death penalty. The defense acknowledges that Holmes was the shooter but questions whether he was legally sane. Holmes has pleaded not guilty by reason of insanity to multiple counts of murder and attempted murder.

Holmes went through a mandatory sanity evaluation last summer, though the results are unknown. The murder trial has been postponed indefinitely while attorneys argue a prosecution motion seeking further psychiatric evaluation.


Though the court’s ruling may not affect Holmes, the ruling does have an impact in how the courts in New York interpret the degree of protection reporters may seek. In a 30-page decision, the majority of judges held that Winter remained protected by New York’s tougher laws even at the expense of Colorado’s desires.

“There is a substantial likelihood that a New York reporter will be compelled to divulge the identity of a confidential source (or face a contempt sanction) if required to appear in the other jurisdiction — a result that would offend the core protections of the shield law, a New York public policy of the highest order,” the court said in overturning a mid-level appeals court’s decision supporting the subpoena from Colorado.

One dissenting judge said New York’s law does not protect Winter because the privileged communications with her sources took place in another state. But the majority argued that New York’s policy of strongly protecting reporters should take precedence.

“It is clear from the certificate issued by the District Court in this case that the only purpose of requiring Winter to appear in Colorado is to compel her to reveal the identities of the individuals who supplied the information she reported in the news story -- information obtained in exchange for a promise of confidentiality. Disclosure of this information will enable the District Court to determine the origin of the leaks, presumably so that the individuals involved can be sanctioned for violation of the nondisclosure order and perhaps even prosecuted for perjury,” the majority ruled.


“This is a valid objective in light of the apparent breach of the District Court’s pretrial ‘gag’ order. But this predictable chain of events is precisely the harm sought to be avoided under our Shield Law for it is fear of reprisal of this type that closes mouths, causing news sources to dry up and inhibiting the future investigative efforts of reporters,” it said.

Winter’s attorney said she welcomed the ruling.

“We are absolutely thrilled and delighted that New York state’s highest court has once again reaffirmed how important the protection of confidential sources is to the proper functioning of our society,” the attorney, Dori Hanswirth, told the Associated Press.

Hanswirth said she did not know whether Holmes’ attorneys would appeal to federal court but said a federal judge would have no jurisdiction.


“This case is over as far as Jana Winter,” Hanswirth said. “She does not have to appear in Colorado again and she will not appear.”

[Updated, 3:37 p.m. Dec. 10: Winter’s employer -- Roger Ailes, chairman and CEO of Fox News -- praised the decision. “Today’s ruling is a major win for all journalists,” he said in a statement. “The protection of Jana Winter’s confidential sources was necessary for the survival of journalism and democracy as a whole.”]

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