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Now is the time to support Jana Winter

Posted by on Nov. 10, 2013 at 2:50 AM
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Now is the time to support Jana Winter

Here we go again.

On Tuesday, Fox News reporter Jana Winter will be back in court, this time in Albany, continuing her fight to avoid jail and protect her confidential sources.

On that day, the New York State Court of Appeals, the state’s highest court, will hear her plea to reverse a lower state court ruling which orders her to return to Aurora, Colorado to testify in the trial of James Holmes, the man charged with 166 felony charges, including 24 counts of first degree murder, in the movie theater massacre at a midnight showing of “Batman, The Dark Knight Rises.” Twelve died and over 55 were injured in the attack on July 20, 2012.

All Americans who believe that democracy depends in part on a free and independent press have a stake in the outcome of this fight.

Five days after the shooting, Ms. Winter, citing unidentified “law enforcement sources,” reported that Holmes had sent a notebook "full of details about how he was going to kill people" to a University of Colorado psychiatrist before the attack. 

The notebook, which may have sat unopened in the university mail room for up to a week before the shooting, she disclosed, contained “drawings of what he was going to do in it -- drawings and illustrations of the massacre," she quoted a law enforcement source as saying, as well as “gun-wielding stick figures blowing away other stick figures.”    

While Ms. Winter’s report was a world class scoop, defense attorneys complained that her law enforcement sources had denied Holmes a fair trial by violating the judge’s gag order and leaking her potentially incriminating information. 

After 14 law enforcement officials denied having been her source, the Colorado judge in the case ordered her to turn over her notes and testify about who gave her the information. 

The court also demanded that New York enforce its certificate, then subpoena Ms. Winter and require her to return to Colorado on January 3, 2014 and testify about her sources, which she has refused to do. 

In March, New York’s lower state court sided with Colorado. 

The five-judge panel ruled, in a 3-2 decision, that Holmes’s right to a fair trial with all available evidence trumped Ms. Winter’s right to protect her sources. 

The court also ruled that she would not undergo “material hardship” if she testified because Colorado would pay the cost of her transport back to Colorado and lodging during her stay.       

In her appeal, Ms. Winter argues that the lower court should not have approved a certificate that would require a journalist to testify in a state like Colorado which does not provide the same protection of confidential newsgathering information as New York. 

Her right to keep sources private, she argues, is guaranteed by New York’s media shield law, which gives reporters “absolute protection” against being forced to disclose sources. 

While Colorado also has a media shield law, it is far weaker than New York’s. 

In New York, unlike Colorado, a journalist cannot be jailed for refusing to name sources. This protection, she argues, is fundamental to investigative reporting.

The lower court in New York also defined the “material hardship” on her if she testifies too narrowly, she argues. 

In a powerful dissent from the lower New York court’s ruling, Judge David B. Saxe wrote that the concept went far beyond transport and housing costs -- though Jana Winter has already traveled to Colorado four times in connection with this case. 

The lower court, Judge Saxe noted, did not consider Ms. Winter’s assertion that “she relies upon confidential sources for her livelihood, and that her sources would not speak to her if she divulged their identities.”  

If Colorado forced her to testify, “material hardship” would be far more than “three days of travel, a hotel stay, and missing work,” Judge Saxe argued. “It is nothing short of undermining her career, the very means of her livelihood.”

Jana Winter’s case has received all too little attention, given the free press issues at stake.  

A Google News search for "Jana Winter" turned up very little coverage outside of Fox News.

Given the broader assault on journalists and a free and independent press every American should know Jana's name. 

All journalists, indeed, all Americans who believe that democracy depends in part on a free and independent press have a stake in the outcome of this fight. Now is the time to support Jana Winter.

Judith Miller, a Fox News contributor, is an award-winning writer and author. She spent 85 days in jail in the Alexandria Detention Center in Virginia in 2005 to protect confidential sources. She is the author of a forthcoming memoir.

by on Nov. 10, 2013 at 2:50 AM
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Replies (1-10):
Ednarooni160
by Eds on Nov. 10, 2013 at 2:51 AM

Anyone else heard of this?  Thoughts?  

grandmab125
by Gold Member on Nov. 10, 2013 at 3:02 AM
2 moms liked this

 Yes.  I heard about it last spring.  Here's what the NYT had to say about this in Apr 2013.

Op-Ed Contributor

A Killer’s Notebook, a Reporter’s Rights

Jana Winter, a reporter at Fox News, covered the shooting rampage that killed 12 people and injured 58 others at a movie theater in Aurora, Colo., on July 20, 2012. Five days after the attack, she reported that James E. Holmes, who has been charged with committing the massacre, had sent a notebook to a psychiatrist before the attack.

On July 25, Ms. Winter quoted two unnamed law enforcement sources as saying that Mr. Holmes had “mailed a notebook ‘full of details about how he was going to kill people’ to a University of Colorado psychiatrist before the attack.” According to her reporting, the notebook contained “drawings of what he was going to do,” including sketches of “gun-wielding stick figures blowing away other stick figures.”

Mr. Holmes’s lawyers are now trying to compel Ms. Winter to disclose her sources, who spoke to her on a confidential basis and possibly violated a court-imposed order that was intended to restrict public access to materials in the case so as to ensure a fair trial. The defense lawyers say the information is relevant because it speaks to the credibility of law enforcement officers who, under oath, have denied leaking the information.

Lawyers for Ms. Winter and Fox News have moved to quash the subpoena, asserting that under the First Amendment and Colorado’s “shield law,” which protects reporters, she is not required to disclose her sources. On Monday, the judge in the Holmes case, Carlos A. Samour Jr., put off a decision on the motion, saying he needed to first decide whether the notebook was even relevant to the criminal proceeding.

But the case is clear-cut.

If Ms. Winter were compelled to reveal her sources — or found in contempt of court and fined or jailed for refusing to do so — it would have a chilling effect on journalists and their ability to gather information in the public interest. This should be an open-and-shut case, but it comes at a time when the Obama administration, despite its commitment to transparency, has pursued a record number of criminal prosecutions against whistle-blowers for leaking information to the press, even if the disclosures were done out of an honest desire to serve the public interest. (Disclosure: I have represented Fox News and its parent, News Corporation, in the past, but have no involvement in this case.)

Colorado, like 39 other states and the District of Columbia, has a “shield law” specifically designed to protect journalists from having to disclose their sources. In Colorado, before requiring a reporter to testify about confidential sources, a court must be convinced that the information is “directly relevant to a substantial issue in the proceedings.” In this case, the identity of Ms. Winter’s sources has no bearing on whether Mr. Holmes is guilty or innocent in the movie-theater massacre. It seems like nothing more than a sideshow, a tactic by the defense lawyers to intimidate the leakers and divert attention from the criminal trial.

Over the last 40 years, courts around the nation have repeatedly recognized the strong First Amendment interest in protecting confidential news sources. One federal appellate court ruled that jeopardizing a journalist’s ability to protect the confidentiality of sources would “seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.”

There is no question that Ms. Winter’s article was of public interest and concern: By reporting on the mental health of an alleged mass murderer and his apparent statements to a psychiatrist, she shed light on the dilemma mental health professionals often face in balancing confidentiality obligations and public safety concerns. (In this case, the notebook did not ever reach the psychiatrist to whom it was sent; its existence was only uncovered after the attack.)

Mr. Holmes’s lawyers argue that his notebook cannot be used as evidence against him because it is protected by Colorado’s psychotherapist-patient privilege, which prohibits the disclosure of “knowledge gained” from patients without their consent. (While Colorado law recognizes that a psychotherapist may have a duty to disclose a “threat of imminent physical violence against a specific person or persons,” it is not clear whether that duty would have applied in this case.)

This form of privilege is recognized nationally and the implications go well beyond Aurora; these issues are also central to the ongoing national debate over gun control since the elementary school shootings last December in Newtown, Conn.

If a litigant’s mere desire to punish a confidential source were enough to force a reporter to disclose the source’s identity, then journalism would be seriously jeopardized and laws protecting it would be gutted.

This seems to already be happening to Ms. Winter. “Because my sources have been intimidated by the specter of the Holmes subpoena,” she wrote in an affidavit, “reports have gone unwritten and I have been thwarted in my news-gathering.”

The case of Ms. Winter, a young reporter, has not gotten as much attention as battles over confidential sources that involve national security matters, but, given the increasing prominence of mass shootings in America and the complicated role that mental illness has played in many of these cases, her case is a pivotal one for journalists and for any American who cares about freedom of the press.

Theodore J. Boutrous Jr. is a partner at the law firm Gibson, Dunn & Crutcher, focusing on appellate and constitutional law.

 

I agreed with her position then, and I still agree with it now

SallyMJ
by Ruby Member on Nov. 10, 2013 at 10:52 AM
1 mom liked this

I love how in the liberal/Progressive world, whistle-blowers are encouraged to come forward and will not be persecuted.

Except if they promote non-liberal and non-Progressive positions.

Viva la difference.

Freedom of speech for everyone....except if you have non- liberal/Progressive views.

lancet98
by Member on Nov. 24, 2013 at 11:16 PM

I think this is one situation where the reporter should, in fact, reveal her source, but I think it should not be given to the general public, only to the judge, to deal with only in the context of the murder trial.   This has been done before, so it is not like there is no precedent.

Yes, when there is a gag order on evidence in a murder trial I DO think that if someone gives crucial evidence to the media, that is under a gag order declared by a judge, YEAH I think they should be actionable.

The problem is that this is a very serious murder trial - many people were killed or injured.   So this is, I believe, the exception to the general rule - that reporters still have various levels of protection of their sources, state by state.

No, I don't  feel that NY law on this matter, applies to a murder case in Colorado, involving her contacts and journalistic activities, in Colorado.

No, I don't believe it is a hardship for her to have an all expense paid trip to Colorado.

Analeigh2012
by Silver Member on Nov. 25, 2013 at 12:17 AM
I actually agree with pp (^^).
When there is a gag order, violators need to be dealt with by the court.
Clearly one of the law enforcement officiers lied when being asked if they violated the gag order - that is two counts against him / her.
I believe in free speech, I believe in confidential sources, I believe in protecting reporters. But a court order should be respected as well.
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Analeigh2012
by Silver Member on Nov. 25, 2013 at 12:19 AM
And yes, I have heard about this case

Quoting Analeigh2012:

I actually agree with pp (^^).

When there is a gag order, violators need to be dealt with by the court.

Clearly one of the law enforcement officiers lied when being asked if they violated the gag order - that is two counts against him / her.

I believe in free speech, I believe in confidential sources, I believe in protecting reporters. But a court order should be respected as well.
Posted on CafeMom Mobile
sarahjz
by Bronze Member on Nov. 25, 2013 at 11:37 AM

This is the first I have heard of this.  Very interesting.  

sarahjz
by Bronze Member on Nov. 25, 2013 at 11:38 AM
1 mom liked this

Thanks for the additional info.

Quoting grandmab125:

 Yes.  I heard about it last spring.  Here's what the NYT had to say about this in Apr 2013.

Op-Ed Contributor

A Killer’s Notebook, a Reporter’s Rights

Jana Winter, a reporter at Fox News, covered the shooting rampage that killed 12 people and injured 58 others at a movie theater in Aurora, Colo., on July 20, 2012. Five days after the attack, she reported that James E. Holmes, who has been charged with committing the massacre, had sent a notebook to a psychiatrist before the attack.

On July 25, Ms. Winter quoted two unnamed law enforcement sources as saying that Mr. Holmes had “mailed a notebook ‘full of details about how he was going to kill people’ to a University of Colorado psychiatrist before the attack.” According to her reporting, the notebook contained “drawings of what he was going to do,” including sketches of “gun-wielding stick figures blowing away other stick figures.”

Mr. Holmes’s lawyers are now trying to compel Ms. Winter to disclose her sources, who spoke to her on a confidential basis and possibly violated a court-imposed order that was intended to restrict public access to materials in the case so as to ensure a fair trial. The defense lawyers say the information is relevant because it speaks to the credibility of law enforcement officers who, under oath, have denied leaking the information.

Lawyers for Ms. Winter and Fox News have moved to quash the subpoena, asserting that under the First Amendment and Colorado’s “shield law,” which protects reporters, she is not required to disclose her sources. On Monday, the judge in the Holmes case, Carlos A. Samour Jr., put off a decision on the motion, saying he needed to first decide whether the notebook was even relevant to the criminal proceeding.

But the case is clear-cut.

If Ms. Winter were compelled to reveal her sources — or found in contempt of court and fined or jailed for refusing to do so — it would have a chilling effect on journalists and their ability to gather information in the public interest. This should be an open-and-shut case, but it comes at a time when the Obama administration, despite its commitment to transparency, has pursued a record number of criminal prosecutions against whistle-blowers for leaking information to the press, even if the disclosures were done out of an honest desire to serve the public interest. (Disclosure: I have represented Fox News and its parent, News Corporation, in the past, but have no involvement in this case.)

Colorado, like 39 other states and the District of Columbia, has a “shield law” specifically designed to protect journalists from having to disclose their sources. In Colorado, before requiring a reporter to testify about confidential sources, a court must be convinced that the information is “directly relevant to a substantial issue in the proceedings.” In this case, the identity of Ms. Winter’s sources has no bearing on whether Mr. Holmes is guilty or innocent in the movie-theater massacre. It seems like nothing more than a sideshow, a tactic by the defense lawyers to intimidate the leakers and divert attention from the criminal trial.

Over the last 40 years, courts around the nation have repeatedly recognized the strong First Amendment interest in protecting confidential news sources. One federal appellate court ruled that jeopardizing a journalist’s ability to protect the confidentiality of sources would “seriously erode the essential role played by the press in the dissemination of information and matters of interest and concern to the public.”

There is no question that Ms. Winter’s article was of public interest and concern: By reporting on the mental health of an alleged mass murderer and his apparent statements to a psychiatrist, she shed light on the dilemma mental health professionals often face in balancing confidentiality obligations and public safety concerns. (In this case, the notebook did not ever reach the psychiatrist to whom it was sent; its existence was only uncovered after the attack.)

Mr. Holmes’s lawyers argue that his notebook cannot be used as evidence against him because it is protected by Colorado’s psychotherapist-patient privilege, which prohibits the disclosure of “knowledge gained” from patients without their consent. (While Colorado law recognizes that a psychotherapist may have a duty to disclose a “threat of imminent physical violence against a specific person or persons,” it is not clear whether that duty would have applied in this case.)

This form of privilege is recognized nationally and the implications go well beyond Aurora; these issues are also central to the ongoing national debate over gun control since the elementary school shootings last December in Newtown, Conn.

If a litigant’s mere desire to punish a confidential source were enough to force a reporter to disclose the source’s identity, then journalism would be seriously jeopardized and laws protecting it would be gutted.

This seems to already be happening to Ms. Winter. “Because my sources have been intimidated by the specter of the Holmes subpoena,” she wrote in an affidavit, “reports have gone unwritten and I have been thwarted in my news-gathering.”

The case of Ms. Winter, a young reporter, has not gotten as much attention as battles over confidential sources that involve national security matters, but, given the increasing prominence of mass shootings in America and the complicated role that mental illness has played in many of these cases, her case is a pivotal one for journalists and for any American who cares about freedom of the press.

Theodore J. Boutrous Jr. is a partner at the law firm Gibson, Dunn & Crutcher, focusing on appellate and constitutional law.


I agreed with her position then, and I still agree with it now


LucyMom08
by Silver Member on Nov. 25, 2013 at 11:42 AM
There was a court order that was violated...why is that excusable to some of you?
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LucyMom08
by Silver Member on Nov. 25, 2013 at 11:43 AM
Why do you feel it's ok to violate a court order?

Should everyone who wants to say something ignore court orders?


Quoting SallyMJ:

I love how in the liberal/Progressive world, whistle-blowers are encouraged to come forward and will not be persecuted.

Except if they promote non-liberal and non-Progressive positions.

Viva la difference.

Freedom of speech for everyone....except if you have non- liberal/Progressive views.

Posted on CafeMom Mobile
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