Reporter faces jail for reporting on murder case

It’s the ultimate character test for a journalist: give up your confidential source or face going to jail.

And it’s not just a theoretical possibility in this age of aggressive prosecutions. Judith Miller, as a New York Times reporter, spent 85 days in jail for refusing to divulge her source in the CIA leak investigation. And federal prosecutors are eavesdropping on some journalists and treating them as potential criminals.

Jana Winter is now confronting the same career-threatening crisis. But it’s not the government that is going after the Fox News reporter. It’s an accused mass murderer.

Winter could face jail time for not revealing her sources in covering the movie-theater shooting in Aurora, Colo., that left 12 people dead and dozens injured last year. She disclosed that gunman James Holmes had sent a notebook to his psychiatrist before the late-night massacre.

The impact of the case against Winter is “quite palpable,” her lawyer, Dori Ann Hanswirth, told me. “She’s having a harder time getting sources to talk to her. Her career as an investigative journalist is damaged. She’s very concerned and upset.”

Winter will ask New York State’s highest court on Tuesday to quash the subpoena issued at the request of Holmes’ legal team. She is asking the Court of Appeals to overturn a 3-2 ruling in a lower court that she can be compelled to testify.

Her case would be a slam dunk if the trial were taking place in New York. The state has one of the country’s strongest shield laws protecting journalists from having to disclose their confidential sources. But Colorado has a much weaker shield law, and its legal standards will apply if the New York courts uphold the out-of-state subpoena.

Holmes “wants her testimony,” says Hanswirth, “because he is convinced that whoever gave Jana Winter some information about a notebook that he gave to a psychiatrist before he went on his rampage violated a gag order against pretrial publicity.”

That may be his legal right, but it seems like a side issue that has nothing to do with his guilt or innocence in the murder trial. Winter’s lawyers dispute the argument that Holmes exhausted all other legal means for getting the information about the leakers.

The Holmes notebook, Winters had quoted a law enforcement source as saying, included “drawings and illustrations of the massacre," along with “gun-wielding stick figures blowing away other stick figures.”    

Winter's team had filed a motion asking they will be “unfairly handicapped” unless she can see the notebook in question, but Holmes’ attorneys are trying to block that request. All the officials with access to the notebook have denied being the source of the leak, meaning one or more could potential face perjury charges.

Three dozen media organizations are supporting the Fox reporter in her legal battle, including the New York Times, Washington Post, ABC, NBC, Politico, Reuters, the New Yorker and the Associated Press.