Reporter Faces Jail Time Over Source for James Holmes Notebook

A judge has threatened a journalist with the possibility of up to six months in jail if she refuses to reveal her source


not james holmes
Fox News reporter Jana Winter is being pressed by James Holmes' defense attorneys to reveal her source for information about a notebook Holmes sent to his psychiatrist before the Aurora theater shooting. Defense attorneys contend her source must have violated a gag order by the judge. In a hearing in December, 14 law enforcement officials were questioned about the notebook, but none admitted to being the source. The judge wants one more detective questioned before compelling the reporter to take the stand. Winter could face up to six months in jail if she doesn't identify her source in that case; she's indicated through her attorney that she doesn't intend to reveal her source in court.

Winter is theoretically protected from being forced to reveal her source by shield laws that exist in both New York and Colorado, as well as a plain reading of the First Amendment, as Judge Andrew Napolitano, Fox News' senior judicial analyst and a Reason contributor, noted yesterday:

The whole purpose of the First Amendment is to stimulate and protect open, wide, robust debate about the policies and personnel of the government. Truth is essential to that stimulation. Putting reporters in jail for revealing the truth while protecting their sources is profoundly contrary to that purpose and highly offensive to the values the First Amendment was written to protect and we have all come to enjoy.

A New York judge signed off on the Colorado judge's subpoena of Winter, who showed up in court Monday but did not yet have to testify. Her attorneys are looking to avoid her returning to Colorado all together, or at least until a court in New York has reviewed their appeal. As I noted about this case last month, New York's shield law is more robust than Colorado's, which allows a journalist to be compelled to reveal her sources if all other avenues of uncovering the information have been exhausted. The information sought also has to be substantially relevant to the case, which Winter's attorneys argue it is not. Journalists, of course, need to be able to protect their sources' confidentiality across the board in order to be able to secure confidential sources for any stories, it's a necessary foundation of free press. When the government takes for itself the power to compel a journalist to break the confidentiality of their sources or newsgathering methods, it erodes that foundation.

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  1. Could someone please explain to me the difference between a gag order and a secret trial? Gag order and secret Grand Jury testimony has always been one of the more infuriating aspects of our court system. Courts are supposed to be open.

    1. A gag order is usually to keep the attorneys from poisoning the jury poll by holding press conferences, letting their clients go on The Today Show, etc.

      1. I know the difference. That was not my point.

        1. A grand jury is not really a court. It’s a DA’s tool.

        2. Why were you asking what the difference was if you know the difference?

    2. Why would a gag order infuriate you? For the purposes of justice, a trial should be adjudicated in a court under the guidance and control of a judge.

  2. Journalists, of course, need to be able to protect their sources’ confidentiality across the board in order to be able to secure confidential sources for any stories, it’s a necessary foundation of free press.

    First, assume there is a journalist …

  3. Judith Miller’s palms bleed for her.

    What a bunch of dicks – the courts, not the reporter. This shit is, as John notes, just infuriating. I admire her willingness – apparently – to go to jail for her principles (and wouldn’t fault her if she caved, cause the big stick of the govt is a bitch) – and curse the NY and CO vermin..

    As for her source – what difference, at this point, does it make?

    Fuck you, NY and CO legal systems.

    1. And what difference does it make that this shithead’s notebook got out. Let him sue his psychiatrist for breaking confidence. But it has nothing to do with the trial.

    2. You might not feel that way if you were on trial and the prosecutors were leaking stuff to prejudice the public against you.

      1. Then leak right back. And further, if you think the jury pool is tainted, ask for a judge alone trial. And further, if you are in fact innocent, you should be able to explain those things in court during the trial. I don’t believe for a minute that bad pre trial press overrides good argument and facts at the actual trial.

        1. Unless you are poor and stuck with a public pretender who is trying to win brownie points with the D.A. by convincing all his clients that their only choices are taking a plea or losing in court.

          1. If you are in that position, you have bigger problems that pretrial publicity.

        2. Except the burden is NOT supposed to be on the defense, which is where you’re placing it.

          1. Where do you get that from?

          2. Except that the burden shifts once the prosecution introduces evidence. Just because the prosecution has the burden of proof doesn’t excuse the defense from explaining evidence offered against him.

  4. Can someone explain to me how the 1A relates to source confidentiality? You can publish what you want, no prior restraint, I get that. But why is a reporter not subject to having to cough up when there’s a subpoena, just like everybody else?

    I’m a scientist, not a “journalist.” But I was forced to turn over a bunch of stuff under subpoena when a large chemical company didn’t like something I said in a scientific paper, and my attorney was unable to get me to understand how that was different. I still don’t. And I did have to turn everything over, and let the opposing counsel have a nice fat paycheck day grilling me on cherry-picked portions of my notes.

    1. It doesn’t say that and the SCOTUS has never said it did. Reporters just decided it did and pretend it is true. It is not.

    2. Did she technically break some law? Probably. If so, she’s protected by the fifth amendment. The flip side of too many laws.

      1. I understand that in some grand jury situations, you can’t even invoke the 5th. But IANAL or anything like a lawyer.

      2. 5th amendment only applies to self-incriminating testimony. You CAN be forced to testify against someone else.

        1. You can be forced to testify against yourself as well in a GJ, from my understanding. The dodge is that you’re granted immunity for GJ testimony, but of course, if one (a corrupt law enforcement or prosecutorial “one”) now knows what to look for, evidence of your guilt can be found elsewhere. The testimony can’t be introduced, but any evidence found following that testimony, well, tough shit.

          1. Technically, the fruits of your testimony can’t be introduced either. So if you are forced to tell them where you buried the stolen money, and the cops use the info to dig it up, they can’t use that information against you (though they can return the money to its rightful owner).

            That’s why immunity is a delicate proposition. If you have immunity, it would be wise for you to answer all questions truthfully and fully, getting an “immunity bath.”

            1. Your keyword there is “technically.”

              “Oh, we just found it. We didn’t use the testimony,” because, you know, cops and prosecutors are honest, hard-working officers of the court, pledged to uphold the rule of law.

              1. Look at the difference between “transactional” immunity and “use” immunity. One’s a lot broader than the other.

                Really though, your lawyer should be the one looking at it and negotiating what you know for what you can get.

                1. Ah, but neither form of immunity lets the prosecution use the fruits of your incriminating statements.

        2. But how do they know that the evidence I give won’t be self incriminating? How am I supposed to know? What if they want to use it to Martha-Stuart me? Anything I say could be self incriminating if I’ve ever talked to any law enforcement officer about anything in the past.

          Also the 5th amendment doesn’t say “unless you are given immunity”.

          1. But how do they know that the evidence I give won’t be self incriminating?

            The judge makes that determination based on the nature of the question.

            Also the 5th amendment doesn’t say “unless you are given immunity”.

            If you have immunity there’s no consequence for testimony against yourself.

            1. If the judge already knows what I’m going to say, then just let him testify.

    3. I’m with you on this. My default position is that all forced testimony is bad. It might be possible to construct a hypothetical situation in which I could be for it anyways, but the factors to consider don’t include whether one is a “journalist” or not. And the relevant constitutional amendment seems to be the 5th, not the 1st.

    4. It doesn’t. That’s why it is usually the state shield laws that protect journalists from having to reveal their sources.

  5. No! Not Meadow Soprano! Just because she can’t park a car? This is an outrage.

    The press in freedom of the press is not a profession but an means of disseminating opinion and information. Journalists shouldn’t get special protections. Everyone has to reveal their source, or no one.

    1. I vote no one.

    2. I’d incline towards “no one.”

    3. As a journalist I agree that I should have no special rights. I also prefer the term newspaperman. Now you kids get the fuck off my lawn.

  6. I’d protect her confidentiality with a gag order.

  7. “”””Putting reporters in jail for revealing the truth “””

    But isn’t part of the truth who gave her the information?

    Everyone tries to pretend that confidential sources are just some little file clerk who want the truth to come out but in fact 99% of them are just trying to push an agenda but don’t want their name attached to it.

    Reporter are more interested in protecting their sources then in telling the public the truth.

    1. But the government only forces journalists to name names when its the little file clerk/army private.

  8. Putting reporters in jail for revealing the truth while protecting their sources is profoundly contrary to that purpose and highly offensive to the values the First Amendment was written to protect and we have all come to enjoy.

    Horse shit. The first amendment give your the right to print it. It doesn’t say a god damned thing about a right to protect your source. The first amendment doesn’t give “journalists” special privileges to defy subpenas and answering questions under oath.

    You want to argue against gag orders? Fine. But don’t tell me that the first amendment gives you the right to abet a crime.

    1. It is a utilitarian argument. “I can’t print the truth if no one will talk to me, and no one will talk to me if I have to reveal who they are and what they said.”

      There is a some truth in this. A zealous prosecutor could effectively shut down a news agency by threatening to investigate/prosceute anyone that talks to the news agency.

      But it not really a 1st amendment issue. The legislature should set the rules for how and when publishers can be forced to disclose sources. The courts should not be making judgements based on the emanation and penumbras of bits and pieces of the constitution.

      1. Speaking utilitarianishly, the “truth” she printed isn’t as important as the defendant’s right to a fair trial.

        1. How have his rights to a fair trial been impeded? His attorney is still free to disqualify any prospective jurors that could have had their opinion impacted by the notebook she showed.

          This is no different that cops parading around pics of drugs seized in a raid. They do it in an attempt to corrupt the jury pool all the time.

        2. I would give a defendent facing trial a lot more leeway in demanding source information than I would an agent of the state facing corruption charges.

  9. Please God, let this woman testify that she donned a skin-tight, black leather outfit and entered a fourth story window to steal the notebook from an unhackable safe.

    1. Do you say that for the lulz of someone literally claiming to be Catwoman in open court, or because you just want the mental image of her in skin-tight black leather?

      1. yes and yes

    2. She probably has the information hidden in her underwear drawer, in the interest of the public good we will need someone to make sure

  10. She works for FOX News, therefore she has no rights.

  11. I have a working theory on gag orders and secret grand juries, since they were mentioned above.

    Without gag orders, none of the prosecutors or defense attorneys will be able to cash in on their grandstanding by writing tell-all books after the trials end. If the press or the accused steal their thunder, they’ll be wholly dependent on their six-figure pensions for their retirement as opposed to cashing in on the misery and misfortunes of others. And we just can’t have that, can we?

  12. Ahem. The right to speak freely includes, but is obviously not limited to, the right to NOT speak. On any subject whatsoever.

    1. and the only thing worse than being talked about is NOT being talked about.

  13. Is anyone protected by a plain reading of any amendment?

    1. I’ve never been forced to quarter any soldiers in my house.

  14. would berry/10

  15. I think a journalist who goes to prison to protect a source earns *major* credibility. When someone is nervous about talking to her, she can say, “I served six months behind bars because I wouldn’t betray a source. You can talk to me!”

    1. And she can turn her woman-in-prison memoir into a movie…

      Shit, where did that come from?

      1. Hopefully one involving lots of passionate lesbian sex. And scissoring.

  16. I got a nice little jail in my basement they can send her to. I’ll take good care of her.

  17. “New York’s shield law is more robust than Colorado’s, which allows a journalist to be compelled to reveal her sources if all other avenues of uncovering the information have been exhausted. ”

    Ha! What a joke. You’re shielded unless we “can’t” otherwise get the information.

  18. “all together”

    It’s “altogether” in that instance, too…

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