Defense lawyers in the James Holmes Aurora theater shooting case are turning to the U.S. Supreme Court to compel a Fox News reporter to testify about how she received information in the case.
The defense want to question Jana Winter about who told her that Holmes had sent a notebook filled with information related to the July 2012 shooting to his psychiatrist. Law enforcement officials are under a strict order not to discuss the case.
In December, a court in New York, where Winter works and is based, threw out the Colorado subpoena under New York’s shield law, which protects journalists from having to reveal their sources.
The petition to the Supreme Court, filed late last week, said the New York decision “eviscerated” the Uniform Act to Secure the Attendance of Witnesses, an act adopted by all the states that gives defendants the authority to subpoena out of state witnesses, according to an article on Findlaw, a website for lawyers.
“We hope that the Supreme Court will establish that there is simply no Constitutional exemption for journalists to respond, like all citizens, to a validly issued subpoena,” Holmes attorney Daniel Arshack told Columbia Journalism Review in an email. “All who value fair trials and due process, especially in a death penalty case such as this one, should be deeply concerned by New York’s unilateral exemption of journalists from the reach of a subpoena sought in Colorado.”
Winter has fought the subpoena from the beginning, writing in a statement to Colorado lawmakers — who were considering strengthening Colorado’s press shield law — that the very threat that she might have to testify has negatively impacted her ability to do her job.
“Sources with access to information that could have contributed meaningfully to the public’s participation in our democracy decided, as a result of Holmes’ subpoena, that the risk was simply too great for them to come forward,” she said. “As a direct consequence, reports that I had been pursuing on issues of national security, terrorism, and government corruption never saw the light of day, and the public went uninformed.”
She said she was “deeply fortunate” to live in a state that protected journalists so well and encouraged Colorado to strengthen its law. Democrats killed the bill in committee.
Although Holmes’ lawyers have acknowledged that he was the shooter responsible for killing 12 people and injuring 70 during a midnight showing of “The Dark Knight Rises” in 2012, the contents of the notebook could sway a jury as to Holmes’ mental state at the time, according to the Associated Press.
If the Supreme Court does not hear the case, the defense’s petition said, states’ ability to subpoena out-of-state reporters “will become a vestige of a long and treasured but now abandoned fundamental concept of due process.”
Holmes trial date has yet to be set; the court is still working through several pretrial motions.
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