Judges to Weigh If N.Y. Law Protects Reporter in Colorado

, New York Law Journal


Reporter Jana Winter arrives at district court in Centennial, Colo.
FoxNews.com reporter Jana Winter arrives at district court in Centennial, Colo. in April, where she was subpoenaed to testify about sources for her report on a Colorado shooting.

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.

See Appellant's Brief, Respondent's Brief, and Appellant's Reply.

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.

What's being said

Comments are not moderated. To report offensive comments, click here.

Preparing comment abuse report for Article# 1202627126884

Thank you!

This article's comments will be reviewed.