Journalist Jana Winter, center, leaves the courtroom after watching proceedings in November at the New York Court of Appeals in Albany.
Journalist Jana Winter, center, leaves the courtroom after watching proceedings in November at the New York Court of Appeals in Albany. (Tim Roske)

ALBANY — New York’s Shield Law may be invoked by Fox News reporter Jana Winter to block a subpoena issued by a Colorado court to compel her to reveal her sources for an article about James Holmes, the “Batman” theater shooter, a divided Court of Appeals ruled Tuesday.

Writing for the 4-3 majority, Judge Victoria Graffeo (See Profile) said in Holmes v. Winter, 245, that allowing a New York court to uphold the Colorado subpoena “would offend our strong public policy—a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world.”

Noting that the Shield Law represents a fundamental pillar of New York press freedom traditions since colonial times, Graffeo said, “Protection of the anonymity of confidential sources is a core—if not the central—concern underlying New York’s journalist privilege.”

At issue was an online story Winter wrote for FoxNews.com one week after Holmes’ was arrested and charged with killing 12 and wounding 70 in a screening of “The Dark Knight Rises” in Aurora, Colo. Her story quoted unidentified law enforcement sources describing a notebook Holmes had sent to a University of Colorado psychiatrist before the July 20, 2012, shooting that suggested he had plans to commit a massacre.

Graffeo’s ruling said it is “clear” that the subpoena was issued to Winter to compel her to disclose her law enforcement sources, who had apparently broken a gag order issued a few days after the shooting.

Graffeo said it is a “valid objective” by the Colorado court to try to discover who leaked information in light of the gag order and to avoid excessive pretrial publicity in the Holmes case.

“But this predictable chain of events is precisely the harm sought to be avoided under our Shield Law for it is fear of reprisal of this type that closes mouths, causing news sources to dry up and inhibiting the future investigative efforts of reporters,” Graffeo wrote.

Given the “significant disparity” between the Shield Laws in New York and Colorado, and the fact that Winter is a New York resident, “she was entitled to have the Shield Law issue adjudicated in New York before the subpoena was issued,” Graffeo wrote.

New York’s 1970 Shield Law bars a New York court from holding a journalist in contempt for refusing to reveal the identities of confidential news sources. Colorado’s Shield Law allows judges to order journalists to disclose confidential sources if the court decides the interest of justice trumps the journalist’s confidentiality expectations.

Chief Judge Jonathan Lippman (See Profile) and Judges Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined the Court of Appeals majority.

Robert Smith (See Profile) wrote in a dissent joined by Judge Eugene Pigott Jr. (See Profile) that the communications by law enforcement officials questioned by the Colorado court “took place wholly in Colorado, and the New York Shield Law does not apply to them.”

While the majority of the court said the location of the reporter is irrelevant as far as the protections of the Shield Law are concerned, Smith said he could not stand for the idea that a “New York reporter takes the protection of New York’s Shield Law with her when she travels, presumably, anywhere in the world.”

Smith added, “That seems to me an excessive expansion of New York’s jurisdiction, one that is unlikely to be honored by other states or countries or to attain the predictability that the majority says is its goal.”

Judge Susan Phillips Read (See Profile) also dissented, saying she agreed with Justice Darcel Clark of the Appellate Division, First Department, who wrote for that court’s 3-2 majority as it upheld the validity of the Colorado subpoena.

Clark said that complying with the subpoena would not cause Winter “undue hardship” and that it was not certain the reporter would be asked to reveal her confidential sources (NYLJ, Aug. 21).

The Court of Appeals ruling dismisses the subpoena issued by Manhattan Supreme Court Justice Larry Stephen ordering Winter to appear in Colorado. Stephen had granted a request from Holmes to issue the subpoena pursuant to CPL 640.10(2), which is New York’s codification of the reciprocal Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases.

Winter’s attorney, Christopher Handman of Hogan Lovells in Washington, D.C., said last month after arguments before the Court of Appeals that regardless of the court’s determination, Winter would not reveal her confidential sources (NYLJ, Nov. 13).

Handman praised the decision Tuesday.

“This is a landmark ruling for press freedom,” he said. “We couldn’t be happier with the result or the implications for journalism and Jana Winter’s career.”

He noted that while the Court of Appeals said New York courts will not enforce the Colorado subpoena, Winter would still be subject to the subpoena if she ventured into Colorado.

“If she happens to go skiing in Colorado, she could be slapped with a subpoena,” Handman said. “She won’t be skiing in Vail this year.”

The chief executive of Fox News, Roger Ailes, issued a statement Tuesday in which he said that the “protection of Jana Winter’s confidential sources was necessary for the survival of journalism and democracy as a whole.”

A coalition of some of the nation’s leading newspapers and broadcast outlets urged the Court of Appeals to recognize New York’s Shield Law protections in an amicus curiae brief prepared by Katherine Bolger of Levine Sullivan Koch & Schulz.

Daniel Arshack of Arshack, Hajek & Lehrman in Manhattan and Richard Willstatter of Green & Willstatter in White Plains argued for enforcement of the Colorado subpoena before the Court of Appeals.

“The decision undermines the ability of prosecutors and the defense alike, across the country, to compel the attendance of witnesses in criminal cases,” Arshack said in a statement. Holmes’ case “is a death penalty case in which the credibility of law enforcement witnesses may determine whether a man lives or dies. To withhold testimony which could affect that decision simply shocks the conscience.”

Holmes is scheduled to go on trial next year. His attorneys say they will mount an insanity defense.

Neither Arshack nor Willstatter is on Holmes’ criminal defense team in Colorado.

Unusual Reversal

Also on Tuesday, the Court of Appeals took the unusual step of reversing itself from a determination it made on Feb. 14, 2013, in Auqui v. Seven Thirty One Limited Partnership, 212.

This time the court decided after rearguments in the case to affirm an Appellate Division, First Department, finding that a plaintiff is not precluded from litigating the question of whether his ongoing disability from a 2003 accident ended in 2006, as the Workers’ Compensation Board found was true for workers’ comp purposes.

The 7-0 court said Tuesday that upon reconsideration, collateral estoppel should not be applied to the plaintiff’s negligence suit that stems from the same 2003 accident.

Lippman wrote for the court that the issues involved in a negligence action are “much broader” than those in a workers’ comp proceeding.

A negligence action “is intended to make an injured party whole for the enduring consequences of his or her injury—including, as relevant here, lost income and future medical expenses,” Lippman wrote. “Necessarily, then, the negligence action is focused on the larger question of the impact of the injury over the course of plaintiff’s lifetime.”

The Court of Appeals had reversed the First Department when initially passing judgment on the case early this year in Auqui v. Seven Thirty One Limited Partnership, 20 NY3d 1035. The Court of Appeals granted rearguments in June.

The case concerned a suit filed on behalf of Jose Verdugo, a food deliveryman injured in 2003 when he was hit in the head by a sheet of plywood that fell from a Manhattan building owned by Seven Thirty One Limited Partnership.

Annette Hasapidis of South Salem represented the Verdugo family.

Richard Montes of Mauro Lilling Naparty in Woodbury argued for Seven Thirty One Limited Partnership.