The Richmond Register

Viewpoints

April 10, 2013

Justice deferred

In a hearing earlier this week, the judge presiding over the trial in Colorado of accused mass murderer James Holmes deferred deciding whether Fox News reporter Jana Winter should be forced into the "Hobson's choice" of revealing her confidential sources or going to jail for six months.

This is not a case where the identities of the confidential informants are relevant to guilt or innocence. This is not a case where the defendant's right to a fair trial will even remotely be violated by maintaining the confidentiality of a reporter's sources. This is not, in short, a close case.

Or at least it should not be. But that is scant comfort to a reporter who could find herself without a career as an investigative journalist (Who would talk to a reporter in confidence knowing that confidence will not necessarily be respected?) or sitting in a cell while lawyers try to appeal a judgment made by a single judge, which is all it could take to land her in jail.

The facts are straightforward and make clear the irrelevance of Winter's story to the issue of Holmes' guilt. Back in July, Winter reported that the accused had sent a chilling notebook to his psychiatrist at the University of Colorado, citing "law enforcement sources."

Law enforcement sources could mean police officers involved in the investigation of the case. It could mean their secretaries who saw a report on the case. It could mean someone in a clerk's office. It could mean the cleaning crew -- a well-known investigative reporter once told me the best sources are the cleaning crew. In my own experience, a leak when I was a clerk on the Supreme Court cast enormous suspicion on the clerks until the leak was ultimately traced to the printing office -- which would also be, officially, a "court" source.

While Winter was facing a decision as early as Wednesday on whether she would be forced to testify on pain of jail, the judge reasoned that he should defer that decision until he determined, at a minimum, whether the notebook would even be admitted at trial. He also speculated -- and it is speculation -- that if  a source of Winter's story is one of the 14 police officers who have denied being the source, and  if that police officer were to ultimately testify at trial, then the fact that he or she lied about being a source would be relevant to their credibility (subject, of course, to the additional if that the testimony is more than a recitation of undisputed facts involving the police investigation, which is what it often is).

Reasonable questions. This is clearly a smart and thoughtful judge. (Ask any judge, and they'll tell you that not all judges are. Winter is "lucky" in that regard, at least.)

But the answer to the hypotheticals, in light of Colorado law, is still clear: A series of speculative possibilities is not enough to override the protections of the First Amendment, much less of a shield law intended to ensure that the rights of reporters are protected (even beyond the limits of the First Amendment as currently interpreted by the Supreme Court), absent an overriding and compelling need for their testimony.

Colorado law establishes that three conditions must be met before a reporter can be required to name their sources. None of them is met here.

The identity of the sources does not go to a substantial issue in the case: here, Holmes' guilt or innocence, or the proper punishment to be imposed.

Forcing the reporter to testify is not the only way to get to the bottom of who leaked the notebook: In my judgment, it would be a useless sideshow. But if the court wants to order the police or prosecutors to conduct a "man/woman hunt" within their own ranks, he has the power to do so.

And most important, the "requesting party's" interest (here, Holmes' interest) does not outweigh the right of the reporter to report -- and of the public to know the facts about a case of enormous public interest. Holmes' right to a fair trial does not mean a right to a trial in which no juror has been exposed to pretrial publicity. Were that the standard, Holmes could not be tried anywhere in America. It is the right to be tried by jurors who affirm that they will decide the case based on the evidence presented in court.

At the end of the day, it is not only Winter who faces jeopardy here. It's not only other investigative reporters, who could face the same "Hobson's choice." It is all of us, the public, who have a right to know truths that are often unavailable except through reliance on confidential sources.

© 2013 CREATORS.COM

1
Text Only
Viewpoints
  • Ronnie-Ellis.jpg Compromise is not that simple

    It’s tempting for a casual onlooker to wonder why the Democratic House and Republican Senate can’t make what on the surface looks like the obvious compromise on pension reform.
    The Senate passed a measure based on recommendations of a task force to move new employees into a hybrid, cash-balance plan but maintain existing defined benefits for current employees and retirees.

    March 23, 2014 1 Photo

  • Jim Waters.JPG Frankfort plays ping-pong with public pension transparency

    Legislation that would make the Kentucky Retirement Systems transparent for those paying its bills has danced into the spotlight during the 2014 session of the Kentucky General Assembly.
    Passage of transparency bills filed by Sen. Chris McDaniel, R-Latonia, and Rep. Robert Benvenuti, R-Lexington, would make the “names, status, projected or actual benefit payments” subject to our commonwealth’s superlative Open Records Act.

    March 14, 2014 1 Photo

  • Jack Strauss-BW.jpg The case of the ghostly neighbor

    Wilbur lived in a world of fears. Everything frightened him. The full extent of his courage was to admit that he had none.
    Noises in the middle of the night, his own shadow creeping up on him and, most of all, black cats scared the wits out of him.
    So, picture his chagrin, one day, when he came home from vacation only to discover that a mausoleum had been erected on property adjacent to his home.

    March 8, 2014 1 Photo

  • Provisional concealed-carry law passes Senate unanimously

    Things are staying busy in Frankfort. Many bills are making their way onto the Senate floor from various committees. This past week several important pieces of legislation were debated and passed.
    I am particularly proud of the success we had in advocating for Kentuckians’ Second Amendment rights.
    I introduced Senate Bill 106 to allow anyone who has been granted an emergency protective or domestic violence order to receive a provisional CCDW permit from the Kentucky State Police in one business day. In some of these cases, victims need this type of protection as quickly as possible.

    March 8, 2014

  • Ronnie-Ellis.jpg 50 years makes a world of difference

    I wasn’t in Frankfort on March 5, 1964, when Dr. Martin Luther King Jr., Ralph Abernathy, and Jackie Robinson led 10,000 on a march to the state Capitol in support of a public accommodations law.
    But a few months later, I stood in front of the “Music Hall,” site of the Glasgow Junior High School located on a street named Liberty, and watched black kids “walk up the hill” of College Street on the first day of integrated schools in Glasgow.

    March 8, 2014 1 Photo

  • 02.23 Mike Duncan mug.jpg Coal has kept Kentuckians warm this winter

    This winter, temperatures across the country dipped to historic lows. Here in our home state of Kentucky, the near-arctic climate caused increased power demand which resulted in an incredible strain on the electric grid and rising energy costs.

    March 6, 2014 1 Photo

  • Jim Waters.JPG Protecting citizens’ data is a no-brainer

    Target Corp. is learning the hard way: The price is steep for retailers who don’t protect customers’ sensitive financial information.
    Target’s profits fell a whopping 50 percent during its fourth quarter of 2013 as the result of a massive security breach involving as many as 110 million of its customers’ credit- and debit-card accounts, which began the day before Thanksgiving and extended throughout much of the holiday shopping season.

    March 1, 2014 1 Photo

  • Ike Adams Making plans for spring planting

    My brother Keith (Keeter) probably planted peas on one of those warm days last week, and I would not be at all surprised to find out that brother Steve did likewise to try to be the first two fellows in Letcher County to actually be digging the soil in their 2014 gardens.
    Keeter’s father-in-law, the late Dock Mitchell, used to get my brother to drive him a 50-mile round trip to get pea seeds and potting soil for early February planting. Dock raised mammoth melting sugar snow peas and sugar snaps around every fence on the place. 

    February 27, 2014 1 Photo

  • Ronnie-Ellis.jpg Cynicism, optimism both on display in Frankfort

    Those who spend little time in Kentucky’s Capitol and who read columns by cynics who cover it should be forgiven their disillusionment about how the people’s business is conducted.

    February 22, 2014 1 Photo

  • Ike Adams Even Scrooge would enjoy library mystery

    Saturday afternoons and evenings are usually down time for Loretta and me.
    We simply don’t get out much after we’ve used up the movie gift certificates the kids gave us for Christmas. That means we mostly go to the movies to avoid guilt trips because our kids do work hard for their money.

    February 20, 2014 1 Photo

AP Video
Raw: Orthodox Christians Observe Easter Rite Ceremony Marks 19th Anniversary of OKC Bombing Raw: Four French Journalists Freed From Syria Raw: Massive 7.2 Earthquake Rocks Mexico Captain of Sunken SKorean Ferry Arrested Raw: Fire Destroys 3 N.J. Beachfront Homes Raw: Pope Presides Over Good Friday Mass Raw: Space X Launches to Space Station Superheroes Descend on Capitol Mall Man Charged in Kansas City Highway Shootings Obama Awards Navy Football Trophy Anti-semitic Leaflets Posted in Eastern Ukraine Raw: Magnitude-7.2 Earthquake Shakes Mexico City Ceremony at MIT Remembers One of Boston's Finest Raw: Students Hurt in Colo. School Bus Crash Raw: Church Tries for Record With Chalk Jesus Raw: Faithful Celebrate Good Friday Worldwide Deadly Avalanche Sweeps Slopes of Mount Everest Police Arrest Suspect in Highway Shootings Drought Concerns May Hurt Lake Tourism
Hyperlocal Search
Premier Guide
Find a business

Walking Fingers
Maps, Menus, Store hours, Coupons, and more...
Premier Guide
Poll

Should the Richmond City Commission stop rezoning property to allow construction of apartments?

Yes.
No
     View Results