A New York state judge was right to order a Fox News reporter to respond to a subpoena in the case of Aurora, Colo., theater shooter James Holmes, a divided appeals panel has ruled, finding that New York's Shield Law for journalists does not protect them from subpoenas in other states.
A 3-2 majority of an Appellate Division, First Department, panel held Tuesday in Matter of Holmes v. Winter, Index 3003713, that Manhattan Supreme Court Justice Larry Stephen acted properly in ordering the reporter, Jana Winter, to appear in the District Court of Arapahoe County, Colorado.
Justice Darcel Clark (See Profile) wrote the majority opinion, joined by Justices Angela Mazzarelli (See Profile) and Helen Freedman (See Profile). Justice David Saxe (See Profile) dissented, joined by Justice Rolando Acosta (See Profile).
Holmes, whose trial is set to begin early next year, 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.
On July 25, 2012, Winter wrote an article for FoxNews.com reporting that, before the shooting, Holmes had mailed a notebook containing crude, violent drawings, including what appeared to be a plan for the shooting, to his psychiatrist. She attributed her report to law enforcement sources speaking on the condition of anonymity.
Following the report, Holmes' attorneys sought sanctions against the prosecution, arguing that Winter's sources had violated a gag order issued three days after the shooting by a Colorado judge.
In February, they tried to compel Winter, who is based in New York, to appear in court in Colorado and reveal her sources. If police sources violated the gag order, that fact could be used to impeach their credibility.
Holmes' attorneys obtained a certificate from the Colorado court that Winter's testimony was material and necessary, and applied to Justice Stephen for a subpoena in New York pursuant to CPL §640.10, known as the Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases. Stephen granted that application.
Winter has appeared in the Colorado court in response to the subpoena, but the Colorado judge has not yet decided whether to order her to reveal her sources. If she is ordered to reveal them and refuses, Winter could be jailed for up to six months for contempt of court.
Winter appealed Stephen's order to the First Department, arguing that New York's Shield Law, which says that a journalist can never be compelled by subpoena to divulge a confidential source, protects her from having to answer the Colorado subpoena.
Colorado has a limited Shield 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 confidentiality.
In Tuesday's opinion, Clark wrote that the issue of privilege could play no role in deciding whether to grant an application pursuant to CPL §640.10, citing the Court of Appeals' 1993 decision in Matter of Codey, 82 NY2d 521.
While the law allows consideration of undue hardship, Clark said, Winter will not suffer any such hardship in traveling to Colorado.
Clark also noted that it was not yet certain that Winter would be ordered to reveal her sources.
"As such, it calls into question whether this matter truly embodies a conflict between evidence privileged under New York law and evidence that is unprotected in the demanding State," she wrote. "It is not certain that respondent will forfeit privilege protections under the law of the demanding State."
In dissent, Saxe wrote that the majority failed to consider the long-term hardship Winter faces in her career as a journalist.
"The motion court's analysis on that point was based entirely on issues of travel costs and accommodations; it did not consider respondent's assertion that she relies upon confidential sources for her livelihood, and that her sources would not speak to her if she divulged their identities," he wrote.
"This approach ignores both the practical reality of respondent's position, and the importance of our state's public policy in favor of protecting the identity of investigative reporters' confidential sources," Saxe added.
He further said that the Court of Appeals' Codey decision, which the majority relied on, did not involve a journalist being asked to reveal an anonymous source, but only to produce notes and tapes from an interview.
He noted that the court in Codey itself said that "a strong public policy of this State, even one embodied in an evidentiary privilege, might justify the refusal" of a CPL §640.10 application, quoting the decision. New York's Shield Law is such a policy, he said.
Saxe also said that it is "extremely unlikely" the Colorado court will not order Winter to reveal her sources, given Colorado's weaker Shield Law and the fact that the court already certified that her testimony is material and necessary.
Finally, Saxe noted that the identity of Winter's sources is "at best a secondary issue in the murder prosecution."
"The Appellate Division got it right by narrowly determining that a reporter, like any other citizen, can be compelled to appear in court," said Daniel Arshack of Arshack, Hajek & Lehrman, who represents Holmes. "The further issue concerning whether or not she is permitted to protect a confidential source would be appropriately determined by the court in which she has been compelled to appear."
Dori Ann Hanswirth, a Hogan Lovells partner who represents Winter, said she would appeal to the Court of Appeals.
@|Brendan Pierson can be contacted at firstname.lastname@example.org. The Associated Press contributed to this report.