ALBANY – The Court of Appeals will grapple Tuesday with the issue of whether a reporter can be forced by a Colorado court to disclose the identity of a source when that information would be shielded within the borders of New York.
The case, Holmes v. Winter, 245, involves the attempt by James Holmes to bolster his insanity defense against charges he is the so-called “Batman killer” who shot 12 people to death and injured 70 at a screening of the movie “The Dark Knight Rises” in Aurora, Colo.
Holmes is seeking to compel FoxNews.com reporter Jana Winter to reveal under a subpoena issued by a Colorado court the law enforcement source or sources she used for a report that Holmes sent a notebook to his psychiatrist suggesting plans for a shooting prior to the July 20, 2012, massacre.
The question before the Court of Appeals will be whether New York state’s Shield Law, Civil Rights Law §79-h, which says a journalist can never be compelled by subpoena to divulge a confidential source, protects Winter from having to reveal her sources.
Holmes’ attorney, Daniel Arshack of Arshack, Hajek & Lehrman of Manhattan, argues hat Colorado’s Shield Law should govern. It allows Colorado judges to order journalists to disclose confidential sources if the court decides the interest of justice trumps the journalist’s interest in confidentiality.
Holmes’ attorneys say if Winter can be made to testify about her anonymous sources, it could reveal that law enforcement officials violated a gag order prohibiting those involved from discussing the Aurora case. That, in turn, could be used to impeach the credibility of law enforcement officials at Holmes’ trial, his defense attorneys argue.
Arshack claims that New York’s Uniform Act to Secure the Attendance of Witnesses From Without the State in Criminal Cases, CPL §640.10, dictates compliance with the Colorado court’s order.
“The public policy of New York as articulated in Civil Rights Law §79-h is that no New York court can compel a reporter to testify about confidential sources when subpoenaed to give evidence in a New York court,” Arshack says in his brief. “The Legislature did not purport to forbid our courts from compelling reporters to respond to subpoenas from other states.”
Arshack argues that Winter would be free to argue before a court in Colorado that she should be allowed to exert any exemptions to disclosures of confidential sources afforded journalists in that state. But she must be compelled to respond to the Colorado subpoena under CPL §640.10, Arshack maintains.
Christopher Handman of Hogan Lovells’ Washington, D.C., office will argue on Winter’s behalf that New York’s practice of extending comity to the laws of other states does not obligate it to recognize other jurisdictions’ laws that are contrary to New York public policy.
Colorado’s Shield Law represents such a clash between New York public policy and another state’s laws, Handman argues.
“Comity…is no more than a voluntarily decision to respect another state’s interests in a particular matter,” Handman says in his brief. “And if those foreign interests conflict with this State’s core public policies, then courts in this State have no choice: public policy, not comity, controls.”
Handman argues that as the “media capital of the world,” with 17,000 outlets and 300,000 people working for its communications companies, New York’s interest in affording its journalists protection under the New York Shield Law is of the “highest order.”
In an amicus curiae brief, some of the nation’s leading media outlets have urged the Court of Appeals to recognize that New York’s Shield Law protects Winter from revealing her sources in Colorado.
They also argue, more generally, that the value of confidential sources has been recognized in New York since the John Peter Zenger case in the 18th century and that many of the journalistic reports of benefit to democracy were based on revelations by confidential news sources.
The media brief, prepared by Katherine Bolger of Levine Sullivan Koch & Schulz, says that “strong state policy embodied in the Shield Law is of critical importance to reporting the news in the American republic and to further discuss the undue hardship faced by reporters who are forced to choose between incarceration and the continuation of their careers.”
The Court of Appeals got the case through Winter’s appeal of a 3-2 Appellate Division, First Department ruling that upheld Manhattan Supreme Court Larry Stephen’s order directing the reporter to comply with the Colorado subpoena (NYLJ, Aug. 21).
The two First Department dissenters said the majority’s position ignores the “practical reality” of Winter’s position, that she would be finished as an investigative reporter if she revealed her confidential sources.
Live webcasts of Court of Appeals’ arguments are available through the court’s site at http://www.nycourts.gov/ctapps/.
The Court of Appeals is expected to rule in December on the Winter matter.
Holmes’ criminal trial is expected to begin early next year in Colorado.
@|Joel Stashenko can be contacted at firstname.lastname@example.org.