New York's highest court will decide whether state law protects a Fox News reporter from revealing confidential sources from a story about James Holmes, who's accused of killing 12 people in a suburban Denver movie theater last year.
Holmes' lawyers want Jana Winter, who works at New York-based Fox News, brought to a Colorado courtroom to name two law officers who told her Holmes had mailed a notebook depicting violence to a psychiatrist. They argue the sources violated a gag order, may have later lied under oath about that and won't be credible as trial witnesses.
Holmes' attorneys argue that New York journalists, as a group, are not immune from being subpoenaed to testify in other states.
The Court of Appeals will hear arguments Tuesday. Its ruling is expected in December.
Holmes has pleaded not guilty by reason of insanity. His murder trial is scheduled for February.
New York has a strong so-called "shield law" protecting professional journalists from having to disclose their confidential sources and preventing courts from finding them in contempt if they don't disclose. Colorado has a similar law, but with an exception to subpoena information "directly relevant to a substantial issue" that cannot be obtained elsewhere.
Winter reported that the notebook, mailed to a University of Colorado psychiatrist before the mass shooting, had drawings of "gun-wielding stick figures blowing away other stick figures." She cited two unnamed law enforcement sources.
"In cases of confidential source information, the privilege is absolute," Winter's attorney Dori Hanswirth said of New York's law. "It was designed to be very strong."
"Essentially what we're arguing is that the public policy in New York that's embodied in the shield law should have prevented the judge from signing off on this particular subpoena," Hanswirth said Monday. Winter has "never wavered" on the accuracy of her report.
New York's shield law was first enacted in 1970. Gov. Nelson Rockefeller said at the time that it would make New York, as the nation's principal center for news gathering and dissemination, "the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen."
Daniel Arshack, an attorney for Holmes, said this case isn't about the shield law at all - just about issuing a subpoena to a witness.
"The issue of what the Colorado court is going to do is for the Colorado court to decide," Arshack said. "The only issue before the court in New York is whether there is a singular class of citizens who are immune to subpoenas."
A Manhattan judge granted the subpoena for Winter to testify, rejecting the claim she's protected from going by New York's shield law. Justice Larry Stephen concluded that whether Winter's information is needed and should be disclosed was an issue for the Colorado court to decide.
A midlevel court agreed. The majority wrote that compelling her to testify was not the same as compelling her to disclose sources. The three justices also concluded the issue of admissible evidence and journalist privilege "remain within the purview of the demanding state rather than the sending state," in this case Colorado.
The two dissenters countered that the majority "fails to acknowledge the near certainty" the Colorado court will compel her to either identify her confidential sources or go to jail for contempt, contrary to New York's public policy. They said she could suffer "undue hardship" in damage to her career.