Fox News subpoena case appealed to Supreme Court

Aurora shooting suspect James Holmes' lawyers are asking the country's highest court to consider forcing reporter Jana Winter to reveal confidential sources

The New York Court of Appeals ruled in December that Fox News reporter Jana Winter did not have to testify—and reveal confidential sources—in the Aurora, CO, movie theater shooting case. But in papers filed late Thursday, defendant James Holmes’ lawyers officially appealed that decision to the US Supreme Court.

Winter was subpoenaed last March to testify in Holmes’ trial after she reported a story revealing that Holmes had mailed a notebook containing violent images to his psychiatrist in advance of the shooting, citing unnamed law enforcement officials. Holmes’ attorneys argued that the officials who provided the information to Winter had violated a gag order, and that Winter’s evidence was necessary to Holmes’ case.

The New York Court of Appeals threw out the subpoena on December 10, ruling that, given the absolute protection for journalists under shield laws in New York state, where Winter lives and works, she would not have to testify in the Colorado court, where she would have been required disclose her sources, or face jail time for refusing to do so. Holmes’ attorneys stated their intention to appeal to the Supreme Court earlier this year. They had 90 days to file following the Court of Appeals’ decision, a period ending on March 10.

The lawyers’ argument in part concerns an act that gives courts the authority to mandate that out-of-state witnesses testify in criminal trials. The petition argues that journalists should not receive special privileges, and that “New York has created its own class of persons who are exempted from [the Act’s] reach.”

If the Supreme Court chooses not to hear the case, the petition argues that the act will be compromised in other cases, and that it “will become a vestige of a long and treasured but now abandoned fundamental concept of due process…”

“We hope that the Supreme Court will establish that there is simply no Constitutional exemption for journalists to respond, like all citizens, to a validly issued subpoena,” Daniel Arshack, an attorney for Holmes, said in an email. “All who value fair trials and due process, especially in a death penalty case such as this one, should be deeply concerned by New York’s unilateral exemption of journalists from the reach of a subpoena sought in Colorado.”

Neither a Fox News spokeswoman nor Winter’s attorney, Dori Hanswirth, immediately returned requests for comment. But after the New York court decision, Hanswirth told the Associated Press that she thought a federal court lacked jurisdiction to hear the case.

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Nicola Pring is a CJR intern