Colo. shooting judge orders reporter to testify

Tuesday, January 22, 2013

DENVER — A judge on Jan. 18 ordered a Fox News reporter to testify about who gave her information about a notebook that the man accused of killing 12 people in a Colorado theater had sent to his psychiatrist.

A July 25 article by Jana Winter on FoxNews.com cited unidentified law enforcement sources in describing the contents of a notebook James Holmes sent to Dr. Lynne Fenton.

Attorneys for Holmes, who also is accused of wounding 70 other people in the July 20 attack, say the information has jeopardized Holmes’ right to a fair trial, and Winter’s notes are needed to determine who leaked it.

In his order, Arapahoe County District Judge William Sylvester said he was requiring Winter to testify in Colorado. He said Holmes’ attorneys would pay for her travel from New York.

Fox News said it couldn’t comment on pending legal matters.

Two days before the Fox News article was published, Sylvester had issued a gag order on parties in the case and law enforcement in an effort to avoid prejudicing the criminal proceedings against Holmes.

“The potential violation of this Court’s orders is a serious issue,” Sylvester wrote.

Law enforcement officials who had contact with the notebook have denied in testimony and in affidavits that they shared information with the news media. Sylvester wrote that if it was true that the information in Winter’s article came from law enforcement, then someone may have committed perjury.

Holmes had sent a package containing the notebook and burnt paper money to Fenton shortly before the shooting, according to previous testimony. Authorities haven’t described the notebook’s contents. Winter’s article said it contained details about how he was going to kill people. Authorities said they learned of the notebook only after Holmes’ attorneys contacted Fenton after the shooting and asked for it back. The package was then found, undelivered, in the university mail room.

Former Colorado prosecutor Karen Steinhauser said the ruling was very unusual and likely means the judge believes the case is an exception to the state’s shield law protecting journalists from revealing their sources.

In Colorado, journalists can be ordered to reveal their sources if they have information directly related to court proceedings, if the information can’t be obtained by other means, and if the interests of the party seeking the information — in this case, the defense — outweigh the interests of the journalist. If they refuse, they can be held in contempt and jailed until they reveal the source.

Prosecutors didn’t take a position on having Winter testify but objected to characterizations that information was leaked. Holmes’ attorneys are seeking sanctions on prosecutors for information that they say was leaked.

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