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.