After a day full of criticism in the media, both of the situation and the coverage, Colorado district court Judge Carlos Samour Jr. decided to delay making a decision that would force Fox News reporter Jana Winter to reveal her anonymous sources or face jail time. Samour submitted a decision late Monday evening saying the time was not "ripe" for him to make a decision as to whether or not Winter should have to testify in the James Holmes trial.
Winters is waiting for Samour to make a decision that could land her in jail. Last July, Winter reported Colorado shooter James Holmes allegedly sent a notebook that was "full of details about how he was going to kill people" to his psychiatrist, Dr. Lynne Fenton, citing law enforcement sources. The judge who was presiding the case, William Sylvester, wasn't happy with this development. He had ordered gag orders on prosecutors, the defense, and police from commenting on the case in public. So when Winter's report came out, the defense and Sylvester wanted to know who her sources were. A number of officers involved in the discovery of the notebook were questioned already but none of them admitted to telling Winter about the notebook. Sylvester has since stepped down from the case and been replaced with Samour, but that doesn't mean much for Winter's fate. She still may be subpoenaed to reveal the source of her story.
Samour was scheduled to make a decision about the case on Wednesday when the Holmes case is scheduled to have its next day in court. An Aurora detective will be questioned and the defense are hoping that will help them figure out who leaked the details notebook. "If that questioning fails to turn up leads on the leak, then Samour could order the reporter, Jana Winter, to testify. If she refuses, she could face up to six months in jail for contempt of court," the Denver Post reported last week.
That April court hearing will go ahead as scheduled, but Samour won't decide whether or not Winter will have to testify until he decides whether the notebook will be submitted as evidence. And that decision depends on the direction the defense decides to take their case, Samour writes:
Accordingly, the Court defers on the merits of Winter's motion to quash and the defendant'smotion for sanctions until the Court determines whether the contents of the notebook seized on July 23 are admissible. The Court notes that the notebook's admissibility depends on whether it is protected by the physician-patient privilege or the psychotherapist-patient privilege, an issue that was previously deferred by agreement of the parties until the defendant decides whether he will attempt to enter a not guilty by reason of insanity plea or to introduce expert evidence of his mental condition.
There's no indication when, exactly, we'll know where this will go. Samour had previously described his decision as presenting Winter with a "Hobson’s Choice." She can reveal her source and potentially ruin her career as an investigative reporter, or she can keep mum like she plans to and serve time in jail. The legalese is a bit more complicated than that, of course. Colorado has a shield law that protects reporters from being jailed for refusing to name sources. There are exceptions, though: should the identity of the source not be obtained by other means, or the information is ruled "directly relevant" to the case, or if the judge decides obtaining the information is more important than the freedom of the press, a reporter can be forced the testify.
Atlantic Wire contributor Sara Morrison spoke to Winter's lawyer, Dori Ann Hanswirth, for the Columbia Journalism Review. Hanswirth says the defense hasn't "really articulated exactly what Jana’s knowledge is relevant to." But the notebook could have major implications down the road for the defense team, should it be admitted as evidence, Morrison explains:
Should Holmes decide to plead not guilty by reason of insanity, the notebook, which is currently sealed and in the court’s possession, could be admitted into evidence, but, again, it’s not clear how knowing who told Winter about its existence would make a difference. More likely, the defense would use any proof that law enforcement officials acted improperly as grounds for appeal should Holmes be convicted.
Winter's story captivated a day's worth of press coverage in certain places on the web Monday, particularly because of how little coverage it was receiving in the quote-unquote "mainstream media." Before the weekend, the only outlet really covering the story was Winter's employer, Fox News. The Denver Post would occasionally provide updates, but ultimately the story of the journalist potentially facing jail time wasn't getting the amount of coverage in the major papers that one might expect. Some were saying out loud that it wasn't necessary a liberal media bias, but that it was because of the accumulated disdain for Winter's employer, Fox News.
"If she worked for mainstream newspapers or CNN, I think the case would have been covered," Judith Miller told Buzzfeed's Hunter Schwarz. "There's a certain reluctance because it's Fox News." Miller once did 85 days behind bars for refusing to give up a source for a 2005 New York Times story. She's now a Fox News contributor. Miller says people were very supportive of me because I was with The New York Times," at the time of her conviction. But the calls of media bias against Fox weren't only coming from inside the Ailes' fortress. A Colorado based CNN reporter, Jim Spellman, got in on the action:
And so did Gawker's Jon Cook, of all people. He had previously dealt with Winter over a story she reported about Gawker. He had nothing but nice things to say about her reporting and nothing but nasty things to say about the lack of coverage Winter was getting from the major papers:
Even when her bosses dispatched her to participate in a calculated hit on Gawker in response to our provocations, she did so fairly and responsibly. The prospect that she may go to jail for doing her job is an outrage. The fact that she has thus far been hung out to dry by a press corps normally quick to cry foul is a direct consequence of the fact that she, and many of her colleagues, have been systematically exploited by Roger Ailes as human shields in their lengthy war on the practice of newsgathering.
Forbes' Rich Ungar chimed in on the matter, too. For him, this is a matter of principle. If the media doesn't defend Winter and she ends up going to jail, it's going to set a terrible precedent and no editor will be allowed to feel bad when one of their reporters is placed in a similar situation:
None of you should be surprised if your lack of support for one of your own —and Jana Winter is one of your own—comes back to bite you in the nose sometime in the future when it is your reporter facing a few months in the pokey.
In the mean time, Winter's story has been picked up in plenty of other places: Politico, Poynter, and Salon, among others. In the mean time, we have to wait for the defense to choose their strategy to decide Winter's fate. We'll keep checking The New York Times to see when someone over there weighs in, too.
This article is from the archive of our partner The Wire.
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