A Colorado Judge has deferred ruling on whether or not Fox News reporter Jana Winter should be compelled to the reveal the source of information she received while reporting on the Aurora theater shootings case and the mental state of suspect James Holmes:
A Fox News reporter who could face jail time if she refuses to testify about her sources in the Aurora theater shooting case has won a reprieve.
Judge Carlos A. Samour Jr. ruled Monday that he won’t decide whether to order reporter Jana Winter to testify until he first decides whether the key clue in the case she was to testify about will be allowed as evidence. In doing so, Samour sided with an argument by Winter’s lawyers that the testimony issue isn’t “ripe” for ruling.
“The Court is not comfortable proceeding on an incomplete record,” Samour wrote in his order Monday. “As soon as the record is adequate, the Court will move forward.”
Samour was to decide during a hearing Wednesday whether to order Winter to testify, and he said at a hearing last weekthat she faced up to six months in jail if she refused to speak. The Wednesday hearing will go on, Samour said, but he will not make a final decision on the issue.
That means Winter may still have to make what Samour referred to in the earlier hearing as a “Hobson’s choice” between preserving her career or staying out of jail. Winter has said that if she discloses her sources, it would violate her source’s trust and ruin her ability to gather news.
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As long as the notebook is sealed, Samour ruled the issue isn’t important enough to the case to overcome the protections Winter has against revealing her sources.
“If the notebook is not privileged and is ruled admissible, it may well prove to be a critical piece of evidence in the case,” Samour wrote in his order. “On the other hand, if the Court concludes that the notebook is privileged and inadmissible, it is difficult to discern why the credibility of one or more of the … witnesses would be of importance.”
Colorado’s shield law gives reporters strong protection against having to divulge their sources, said attorney Steven Zansberg, who has represented several new outlets, including The Denver Post and Fox News, on other issues in the theater shooting case. To overcome that protection, lawyers seeking to put a reporter on the stand must show that the information they want is centrally important to the case, that their interest in getting it outweighs the reporter’s First Amendment rights in protecting it and that they can’t get the information any other way.
“It is extremely unusual,” Zansberg said, especially since the issue here is tangential to the case.
Of course, if Holmes does go forward with a legal insanity defense, then the information contained in that notebook would become highly relevant to the case and, indeed, would likely be something his attorneys would want to introduce at trial. Additionally, if he does raise a mental health defense then it’s generally the rule that the law will deem him to have waived any doctor-patient privilege, although I can’t say for sure what the law on this issue is in Colorado. In other case, though, I’m somewhat at a loss to understand what relevance the identity of whoever leaked the contents of the notebook to Winter has to any of the central issues in the case.
So, it’s a reprieve for Winter for now, but still only a temporary one.
