Why a Fox News reporter faces jail time in the Aurora shooting case

Jana Winter is under pressure to reveal the sources who disclosed details about James Holmes' alleged notebook

Foxnews.com reporter Jana Winter says she prefers prison time to giving up her sources.
(Image credit: Doug Pensinger/Getty Images)

Last July, Fox News reporter Jana Winter scored a huge scoop when she reported about an undisclosed notebook that James Holmes, the alleged shooter in the theater massacre in Aurora, Colo., had sent to a college psychologist.

Yet that story may now come back to bite Winter. A Colorado judge is threatening her with jail time unless she reveals who told her about the notebook.

Days after Holmes allegedly killed 12 people and injured 58 others during a midnight showing of The Dark Knight Rises, Winter reported in an exclusive piece that Holmes had sent a notebook detailing his homicidal plans to a University of Colorado psychiatrist. The story credited unnamed law enforcement officials with revealing the notebook's existence, one of whom was quoted as saying it was "full of details about how he was going to kill people."

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In January, Holmes' lawyers successfully petitioned a judge to subpoena Winter to obtain her notes, testimony, and the identity of her sources, arguing that the notebook's disclosure violated a gag order and could prevent Holmes from receiving a fair trial. Determining who leaked details of the notebook is "of serious and material importance to the case," they said.

Winter is to appear in court on Wednesday, at which point a new judge assigned to the case, Carlos Samour Jr., will determine if she should be compelled to testify, according to Fox. If she refuses, she could be sentenced to six months in jail. Through her lawyer, Winter has said she prefers prison to giving up her sources.

"Fox News reporter Jana Winter faces jail for doing her job too well," an article on FoxNews.com states. "She's not been accused of any crime, only of protecting the identity of confidential news sources while reporting an important development in a major national story."

According to the Digital Media Law Project, Colorado is one of thirty-two states with some form of shield law, which protects reporters from having to reveal the identities of their confidential sources. Yet Colorado's law is not absolute, since it contains an exemption if the information sought from a journalist cannot be obtained by any other means. As the Courthouse News Service's Sam Reynolds points out, the court was unable to unmask Winter's sources on its own, hence the subpoena.

"Undersigned counsel have used all available means to determine which law enforcement agent violated this Court's Order by leaking the contents of this notebook to the media," the lawyers wrote, according to Reynolds. "As none of these efforts have revealed the source of the leaked information, Jana Winter has become a material and necessary witness in this case and her notes are material and necessary to the defense in this matter."

Some journalists and media watchers are concerned that the case could weaken Colorado's shield laws.

"All this means is that if judges want to compel reporters to reveal sources, they can, and the so-called shield laws are meaningless," says Fox News' Andrew Napolitano.

The National Press Club echoed that sentiment in a statement, adding that Winter's case was troubling because it could make sources less likely to speak with reporters in the future.

"Courts have the right to enforce the confidentiality of investigations and that may in some cases require punishing leakers," NPC President Angela Greiling Keane said. "But attempting to get that information by subpoenaing reporters in order to learn their anonymous sources goes too far. It jeopardizes a value of greater significance. If anonymous sources believe their identities can be dredged up in court, they will be less likely to disclose to the press information of vital public importance. That’s not a risk worth increasing."

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