By Susan Estrich
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.
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