Fox News reporter Jana Winter returns to the court house after a midday recess to face Arapahoe County District Judge William Sylvester regarding evidence in the case of Aurora theater shooting suspect James Holmes at the Arapahoe County Justice Center in Centennial, Colo. on April 1, 2013. Winter is facing contempt charges for not revealing her sources that broke a gag order in the case. (Getty Images)
The attorney for the Fox News reporter facing possible jail time for refusing to reveal her sources in a report about the Colorado movie theater massacre said her client knows the consequences of not talking. And a media expert tells us the implications in the case are far-reaching.
Jana Winter exclusively reported days after the Aurora shooting that suspect James Holmes mailed a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist before the attack. Winter cited confidential law enforcement sources for her report, and attorneys for Holmes want to know who they were -- arguing they violated a gag order and could jeopardize Holmes' right to a fair trial.
Winter has said she will not testify and give up her sources, and says Colorado's reporter shield law and the First Amendment protect her from having to do so. But if that doesn't hold up, it could mean jail time.
"She knows what the potential consequences are of being compelled to give up confidential news-gathering information and refusing to do it," Winter's attorney Dori Ann Hanswirth told TheBlaze in an interview Friday. "She can't give up who her sources are because if she gives up her source, then no journalist in the country is going to be able to definitively convince a source that 'journalists just don't do that sort of thing and therefore you can trust me with your information.'"
Fox News reporter Jana Winter, right, and her attorneys arrive at district court for a hearing for Aurora theater shooting suspect James Holmes in Centennial, Colo. on April 10, 2013. Winter was subpoenaed to testify in Colorado about who gave her confidential information about a notebook James Holmes sent to his psychiatrist days before he allegedly opened fire on a crowded movie theater last July, killing 12 people. (AP)
At issue is whether the judge decides the notebook Holmes mailed should be evidence against him. If the notebook is deemed to be communication between a patient and a mental health professional, it would be considered privileged and therefore inadmissible in court -- and the issue of forcing Winter to testify who told her about it would likely be over, Hanswirth said.
Judge Carlos Samour Jr. said Wednesday he was not ruling on the notebook issue yet, and said Winter did not have to return to Colorado until a hearing Aug. 19 -- staving off any potential jail time at least until then.
"Even if the judge does rule that the notebook is admissible, that doesn't mean necessarily that Jana will have to testify," Hanswirth said. That's because Holmes' attorneys would have to prove the information she holds would be "directly relevant to a substantial issue in the proceeding" and therefore an exception to Colorado's reporter shield law.
Shield laws to protect journalists vary by state -- there is no all-encompassing federal law. Hanswirth said there's case law in Colorado that's on Winter's side, but it's not as "robust or wide-bodied" as in, say, New York, which has a stronger shield law and is where Winter lives.
Hanswirth believes there is no way that the names of her client's sources are critical at all to the case against Holmes.
"We have a trial that's not scheduled to begin until February of 2014 -- by that time it will have been a year and half or so [since her reporting] -- it's really hard to understand how whatever conversation Jana Winter had with people back in July would really have any relationship to the issues in the case," she said. "And because of that tenuous connection between information she had and the case, it's even more troubling that Holmes is trying to make her disclose her confidential news-gathering."
A First Amendment issue
Kelly McBride, an ethics faculty member at the Poynter Institute, a journalism think tank in St. Petersburg, Fla., thinks it's more about the First Amendment than the shield law. When the Founding Fathers enshrined freedom of speech and a free press in the Bill the Rights, they specifically guaranteed the press -- journalists -- the ability to be critical of the government.
"When a government tries to force a reporter to reveal her sources for information, that is interpreted by the press as a hostile act meant to curtail the freedom of the press," McBride told TheBlaze.
The shield law, McBride said, creates a special class for journalists, but First Amendment protections for the press can extend to anyone, particularly given new technology and the proliferation of blogging.
"If a court did send Ms. Winter to jail...I would think that journalists everywhere would just go nuts," McBride said.
There is the question of why it took so long for Winter's case to gain widespread attention; until this week, coverage was largely limited to Fox News itself. Judith Miller, a Fox News contributor and former New York Times reporter who spent 85 days in jail in 2005 for refusing to give up the name of a source, said an anti-Fox bias was to blame.
"If she worked for mainstream newspapers or CNN, I think the case would have been covered," Miller told BuzzFeed last week. "There's a certain reluctance because it's Fox News."
Starting Monday, coverage about Winter's case appeared in many of the major news outlets, including the Times and on CNN, where new anchor Jake Tapper demanded to know, "Where's the public outrage?"
But McBride said she's not convinced there was an anti-Fox sentiment in play, and thinks the general news blackout had more to do with the unbelievable nature of the case.
"The main thing I think is most people, when they look at the facts of the case, said 'oh, this couldn't possibly go anywhere," she said.
Hanswirth, Winter's lawyer, seconds that assessment.
"Probably people were thinking, 'oh that's never gonna happen, no judge is going to make her testify about that, that doesn't happen in the United States," she said. "I think that once it came to light that this was a potential reality, that the media indeed started to pay the appropriate attention to this matter."
If it goes much further, Winter's situation could have grave consequences for news and news-gatherers, Hanswirth said.
"As a society, we value our freedom of speech very highly...anytime somebody interferes with the relationship between a journalist and a source it is bad for journalism as a whole. It makes sources scared to come forward, it makes editors fearful, and it kind of chokes off the flow of news," Hanswirth said.