[Update, April 9, 1pm]
The judge in the Holmes case has ruled that he will not order Jana Winter to testify until it is known if the notebook will be added into evidence or remained sealed.
[Original Post, April 8, 11am]
A FoxNews.com reporter could go to jail as early as Wednesday if Aurora, CO, movie theater shooting suspect James Holmes’s legal team has its way.
Jana Winter broke the news on July 25, 2012, that Holmes, whose rampage killed 12 people and injured 58, sent a notebook full of drawings such as “gun-wielding stick figures blowing away other stick figures” to a psychiatrist at the University of Colorado, Anschutz. In the aftermath of the violence, there was a gag order in place to prevent details about the case, including the existence of the notebook, from getting into the press. Holmes’s defense team, led by public defender Tamara Brady (who did not return calls for comment) believes that whoever gave Winter access to the notebook violated the order.
Winter’s article relied on information from two anonymous “law enforcement sources.” The defense wants to know who those sources are. Since the law enforcement officials involved in the discovery of the notebook all testified in an earlier hearing that they did not talk to Winter, Holmes’s defense says the only way to find out is from Winter herself. If a judge agrees at the April 10 hearing, Winter will be compelled to either reveal her sources or face fines and up to six months in jail.
Colorado has a shield law that protects reporters from revealing their sources, but there are workarounds. If Holmes’s attorneys can prove that: the information is “directly relevant” to the case; all other means of obtaining the information have been exhausted; and the need for the information is more important than the First Amendment’s freedom of the press protections, the judge will force her to testify. In its rather glowing account of Winter’s case, FoxNews.com said she would refuse to testify if came to that.
Winter’s lawyer, Dori Ann Hanswirth, insists that the Colorado shield law has not been satisfied. The defense team, she says, hasn’t “really articulated exactly what Jana’s knowledge is relevant to.” Prosecutors in the Holmes case already dropped the request to see the notebook, so unmasking Winter’s sources seems to be more important to proving that the gag order was violated (which, the former judge presiding over the case contended, may have compromised Holmes’s right to a fair trial) than it does Holmes’s guilt or innocence.
Should Holmes decide to plead not guilty by reason of insanity, the notebook, which is currently sealed and in the court’s possession, could be admitted into evidence, but, again, it’s not clear how knowing who told Winter about its existence would make a difference. More likely, the defense would use any proof that law enforcement officials acted improperly as grounds for appeal should Holmes be convicted. As Brady said in the April 1 hearing where prosecutors announced their intention to seek the death penalty: “They are trying to execute our client, and we will do what we need to do to save his life.”
Winter has been dealing with this for months now. Though Hanswirth is confident she will win in court, she says Winter is concerned about what could happen if she doesn’t. “Yes, she’s worried. She’s hanging in there. This has got to be one of the most stressful experiences that a journalist can endure.”
Sara Morrison is a former assistant editor at CJR. Follow her on Twitter @saramorrison.