An attorney for Fox News reporter Jana Winter on Wednesday urged a state appeals panel to quash a subpoena seeking to force Winter to identify sources who leaked information to her about the case of Aurora, Colo., shooter James Holmes, arguing that she is protected by New York’s Shield Law for journalists.
Holmes opened fire in a movie theater on July 20, 2012, during a screening of “The Dark Knight Rises,” killing 12 people and injuring 70. He has pleaded not guilty by reason of insanity, and his trial is set to begin early next year.
Christopher Handman, a partner at Hogan Lovells, represented Winter before the Appellate Division, First Department, in Matter of Holmes, 30037/13, invoking New York’s “strong public policy” in favor of a free press.
Daniel Arshack of Arshack, Hajek & Lehrman, argued for Holmes. He said that quashing the subpoena would undermine Holmes’ right to a fair trial.
The dispute over the subpoena stems from Winter’s reporting on the Holmes case.
Soon after he was arrested for the shooting, Holmes asked that a package he had mailed to a University of Colorado psychiatrist be returned to him. Because of fears that the package contained a bomb, a large number of law enforcement personnel were sent to search the university. They recovered the package, which turned out to contain a notebook belonging to Holmes.
On July 25, Winter wrote an article for FoxNews.com reporting that the notebook contained crude stick-figure drawings that appeared to be a plan for Holmes’ shooting. She attributed that information, as well as information about how the package was obtained, to law enforcement sources speaking on the condition of anonymity.
Holmes moved for sanctions against the prosecution, alleging that the law enforcement sources who spoke to Winter had violated a gag order issued three days after the shooting by a Colorado judge.
In February 2013, Holmes sought to compel Winter to reveal her sources by obtaining a subpoena against her in New York, where she lives and works. He made an application to Manhattan Criminal Court Judge Larry Stephen for a subpoena compelling her to appear in Colorado to be questioned about her sources.
Winter argued that she is protected by New York’s Shield Law from having to appear in Colorado. New York has an absolute Shield Law, which says that a journalist can never be compelled by subpoena to divulge a confidential source.
Colorado, on the other hand, has a qualified law, which allows judges to order journalists to disclose confidential sources if they decide, after weighing relevant factors, that the interest of justice trumps the journalist’s interest in keeping a source confidential. Holmes argues that Winter should be subject to Colorado’s law, not New York’s.
If Winter is made to appear in Colorado and refuses to reveal her sources, she faces up to six months in jail for contempt of court.
Stephen granted Holmes’ application for a subpoena, and Winter appealed.
‘Strong Public Policy’
Handman opened his argument before the First Department on Wednesday by arguing that New York’s Shield Law represents a “strong public policy” protecting journalists, including protecting them from having to appear in other states with weaker shield laws.
“That’s what New York stands for,” he said.
Acosta asked Handman how to reconcile that policy with the fact that the New York Legislature has passed a statute, CPL §640.10, requiring New York judges to grant applications for subpoenas to testify in other states if they determine that the requested testimony is material and necessary.
Handman said that an out-of-state party seeking such a subpoena is still constrained by the laws of New York, including the journalist Shield Law.
Arshack, in his response, said that whether Winter has to testify should be up to the Colorado court, which Stephen properly recognized in granting the subpoena.
Saxe asked Arshack if the identity of the sources was relevant to the case. Arshack said it “goes to the heart of the case” because, if law enforcement officials violated the gag order, it undermines their credibility.
Handman, in a brief rebuttal, reiterated the importance of New York’s policy protecting journalists. Saxe asked him whether, under New York’s policy, the freedom of the press takes precedence over the right to a fair trial.
Handman said it did.
“I think it was an excellent argument,” Arshack said in an interview. “The court was clearly aware of the issues, and obviously concerned about putting themselves in the position, as did the same court in 1993, of addressing policy issues when the only issue to be resolved is whether Ms. Winter can be compelled to attend in Colorado.”
He continued, “Ms. Winter is free to raise any privilege issues she feels she’s entitled to raise in Colorado. She’s free to suggest to the Colorado court that she should enjoy the protection of the New York statute because that’s where she lives and works.”
In an email, Handman said, “We are hopeful that the court will recognize New York’s place as the news capital of the world and will quash the subpoena. New York journalists have an absolute right to protect their confidential sources, and the subpoena flies in the face of this crucial New York public policy.”
@|Brendan Pierson can be contacted at firstname.lastname@example.org.