ALBANY – Arguing for a broad interpretation of New York’s Shield Law, an attorney for a New York-based reporter under subpoena in Colorado in the “Batman killer” case told the Court of Appeals that the law helped establish New York as the media capital of the world.
“The idea that New York, prideful as it was about being the center of the dissemination and the gathering of news throughout the world, would limit its protections to reporters talking to sources in New York about parochial New York affairs flies in the face of the way the Legislature broadly defined news to be worldwide events,” said Christopher Handman of Hogan Lovells in Washington, D.C. “You don’t become the global leader of news gathering and dissemination if all you are doing is reporting on the metro desk,” he told the court hearing Holmes v. Winter, 245.
He argued that journalist Jana Winter should be allowed to invoke the statute to prohibit a Colorado court from compelling her to reveal her confidential sources in a story she wrote for FoxNews.com soon after James Holmes’ 2012 shooting rampage in Aurora, Colo.
The Shield Law defines news in a “broad way” because the media in New York have always had a national and global view of communications, Handman said.
Arguing for Holmes’ defense team that Colorado’s shield law, not New York’s, should apply, Daniel Arshack of Arshack, Hajek & Lehrman in Manhattan contended that a subpoena has been legally issued in Colorado to compel Winter’s testimony, no matter where she lives or where she was when reporting the Holmes story.
Arshack conceded that once she is on the stand in a Colorado court, Winter will be asked to reveal the law enforcement sources she cited for her FoxNews.com story, which said Holmes sent a notebook to his psychiatrist that indicated he had plans for the shootings.
“She can testify or she can litigate this issue in Colorado,” Arshack said. Judge Robert Smith asked, “As she litigates it, surely the Colorado court has to decide which shield law applies, doesn’t it?”
“That will be a decision that the Colorado court will make,” Arshack said.
Following the 30-minute arguments Tuesday, Handman reiterated Winter’s position that revealing her sources would be career suicide for any investigative journalist.
“It is undisputed Ms. Winter will suffer irreparable harm as an investigative journalist if she is forced to burn her sources,” Handman told reporters. “She has been on record that she will never burn her sources, so she will have to go to jail.”
Winter, who attended Tuesday’s court session, declined comment.
Holmes will pursue an insanity defense at his trial next year for opening fire during a screening of the movie “The Dark Knight Rises” on July 20, 2012, killing 12 and wounding 70.
At issue before New York’s highest court is whether CPL §640.10, New York’s Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases, dictates that Winter comply with a subpoena issued by a Colorado court.
Holmes’ attorneys have said that Winter’s source or sources violated a gag order issued by a Colorado judge against officials discussing the Holmes’ case and that they hope to impeach the credibility of law enforcement witnesses at Holmes’ upcoming criminal trial by having Winter reveal her sources.
Under Colorado’s Shield Law, Colorado judges can order journalists to disclose confidential sources if the court decides the interest of justice trumps the journalist’s confidentiality expectations.
New York’s Shield Law, Civil Rights Law §79-h, is more protective of journalists. It says a journalist can never be compelled by subpoena to divulge a confidential source.
Manhattan Supreme Court Justice Larry Stephen (See Profile) issued an order directing Winter to comply with the Colorado subpoena.
Stephen’s order was upheld 3-2 by an Appellate Division, First Department panel (NYLJ, Aug. 21).
The two First Department dissenters said the majority’s position ignores the “practical reality” of Winter’s position, that her career as an investigative reporter would be effectively wrecked if she revealed her confidential sources.
Winter would face up to six months for contempt of court in Colorado if she refused to reveal her confidential sources.
In an amicus brief, nearly three dozen news organizations, broadcasters and journalist trade groups contended that the Court of Appeals’ own ruling in Codey v. Capital Cities, American Broadcasting Corp., 82 NY2d 521 (1993), gave New York courts discretion to consider the public policy implications of cases like the one presented by Holmes.
In Codey, the Court of Appeals said courts could withhold a subpoena that otherwise met the statutory requirements of §640.10 if New York public policy considerations justified it. The media companies argued that Holmes was just such a case, where complying with the subpoena would subject a New York journalist to a Colorado shield law that offered inferior protections against disclosing confidential sources.
The Court of Appeals is expected to rule in December.
Holmes’ trial is expected to begin early next year in Colorado.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.