By Jim Spellman
DENVER (CNN) — The journalist who first reported about a notebook that James Holmes allegedly sent his psychiatrist before last year’s horrific theater massacre could face jail time for not revealing her sources.
FoxNews.com reporter Jana Winter has been subpoenaed by Holmes’ attorneys to testify on Wednesday, but on Monday Judge Carlos Samour Jr. put off a ruling on whether Winter must reveal her source.
Winter has indicated that she has no plans to identify who told her the notebook from the accused Colorado movie theater gunman was, as she reported, “full of details about how he was going to kill people.”
“My reputation as a journalist will be irreparably tarnished among my colleagues and perhaps more importantly my future sources,” Winter wrote in a March affidavit.
Days after the July 20 theater massacre in Aurora, Colorado, Winter scored a major scoop on FoxNews.com, reporting about the existence of the notebook.
“The parcel may have sat unopened in a mail room for up to a week before its discovery Monday (July 23), a law enforcement source told FoxNews.com,” Winter’s July 25 article stated.
She cited a source who said the notebook contained “drawings and illustrations of the massacre.”
At the time of the article, the judge in the case had issued a so-called “gag order” barring officials from speaking to reporters about the case.
Other media, including CNN, later reported on the existence of the notebook sent by Holmes to Dr. Lynne Fenton, the University of Colorado psychiatrist who had treated him. It has since been discussed in open court, though the contents have not been revealed.
Samour said Monday he will not rule on the Winter issue until it is decided whether the notebook is admissible as evidence. If it is not admissible because it is privileged doctor-patient communication, then the credibility of the police officers who handled the notebook may be irrelevant to the case and not rise to the level required by Colorado’s shield law for forcing journalists to testify.
But if Winter is ordered to reveal her source and does not, she could be found in contempt of court and jailed.
Fenton contacted police in June, a month before the massacre, and told them she had treated Holmes and he “had stopped seeing her and had begun threatening her via text message,” according to a search warrant affidavit.
Fenton could face lawsuits that blame her and the school for improperly handling Holmes’ treatment.
Holmes is charged with numerous counts of first-degree murder for allegedly opening fire inside a movie theater, killing 12 people and wounding dozens more at the premiere of the Batman movie “The Dark Knight Rises.”
Federal agents have said the 25-year-old former University of Colorado doctoral student planned the attack for months. His trial is scheduled to begin in February 2014. If convicted, he faces the death penalty.
Holmes’ attorneys have filed a series of motions and hearings in an attempt to find out who leaked the information about the notebook, calling to the stand all the police and bomb technicians who had access to the package. All have said they did not speak to any reporters about the package.
Within hours of its discovery, a judge ordered the package to be sealed and it has not been viewed by anyone since.
Saying they have exhausted all other avenues to identify the leaker, defense attorneys subpoenaed Winter. She appeared in court last week on the same day prosecutors said they would pursue the death penalty against Holmes, although she did not testify.
Fox News declined to comment on the case or make Winter available for interviews, and an e-mail to Winter’s attorney at Fox News went unanswered. The gag order is still in place, barring the defense team from commenting.
Winter and her attorneys have tried to fight the subpoena. The New York-based journalist made it clear in last month’s affidavit that her credibility is at stake if she were to reveal her sources.
“I will be unable to function effectively in my profession and my career will be over,” Winter wrote. “This is not an exaggeration – it is a provable certainty.”
She also said she has been subjected to threats on the Internet by supporters of Holmes.
Derigan Silver, who teaches media law at the University of Denver, expressed concern that Winter’s case could have a chilling effect on investigative journalism and that journalists may be reluctant to pursue challenging stories that rely on confidential sources.
“As a journalist, you ask yourself, ‘Do I sit in front of Britney Spears’ house and snap some pics or do I cover this really important story and maybe go to jail,'” he said.
Silver argued that investigative journalism is in the public interest and Winter’s case should be a rallying point for everyone interested in a free press.
“If people want good important stories, we have to stand up for the reporters doing those stories,” he said.
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