Four days after James Holmes shot up an Aurora, Colorado movie theater, Fox News reporter Jana Winter revealed Holmes’ private diary showing him to be utterly insane. Had the prosecution accepted Holmes’ plea of guilty, this would have been a footnote to the story, but this was big and guilty wasn’t good enough. They needed a 13th dead man, and so the case went on.
At first, the government demanded that Winter reveal her source, as somebody clearly did the dirty by revealing evidence to a reporter in the face of a gag order. But things changed, when it became clear that the private diary was disclosed by a “corrupt detective” whose credulity will be central to the defense at trial. The defense may not have much, but the identity of who the liar within law enforcement may be is as critical a piece of evidence for the defense as there is.
So Fox News’ Jana Winter was subpoenaed to testify by the defense. There was a snag. She was in New York and the Holmes trial is in Colorado. New York’s journalist shield law, Civil Rights Law §79-h, provides total immunity. Colorado’s shield law, C.R.S. §13-90-119, provides only qualified immunity, leaving it to the judge to determine whether the party’s need for evidence outweighs the journalist’s need to be shielded.
The subpoena issued by Holmes’ lawyers in Colorado is, standing alone, ineffective to compel a witness from another state to appear and give evidence, but every state in the nation is part of the Uniform Act to Secure the Attendance of Witnesses from Without the State, which provides a mechanism for the receiving state to enforce the sending state’s subpoena.
So Holmes’ lawyers asked New York lawyer Dan Arshack (who, full disclosure, is an old buddy of mine) to lend a hand to have the New York courts enforce the Colorado subpoena. It’s been a mess. While the Supreme Court and Appellate Division (by 3-2 majority) held that the subpoena is enforceable, the case was just argued before the Court of Appeals.
There are multiple levels upon which to view this clash. At the legal level, it’s not a discussion of anybody’s rights, but merely a routine enforcement of a subpoena by a court of one state to a court of another. Obviously, it’s important that the defendant not be denied evidence for trial because somebody crossed an imaginary boundary and defeated his ability to reach them.
But she’s a journalist? In the 1972 decision of Branzburg v. Hayes, the Supreme Court held that “the law is entitled to every man’s evidence,” meaning that reporters aren’t so special that they can’t be compelled to testify like anyone else. Yet that doesn’t address the question of policy where, as here, constitutional interests clash.
Aside: For those who argue that the Constitution means what it says it means, this is another example of why that belief fails. Sometimes, things the Constitution says conflict. It’s just not that simple.
At the constitutional level, the question is whether the First Amendment freedom of the press, as reflected in a journalist’s ability to get information by being able to conceal the identities of sources trumps a criminal defendant’s right to due process, a fair trial, the right to counsel to subpoena witnesses and to put on his defense.
As laid out in the parties’ briefs before the Court of Appeals (appellant’s brief, respondent’s brief, appellant’s reply brief) it appears that Jana Winter is on the losing end of the law. Codey v. Capital Cities, American Broadcasting makes it clear that honoring the Uniform Act to secure witnesses serves “the interests of comity and respect for a sister State’s investigative processes.” After all, you can’t put on a trial without the witnesses, and states rely on other states to honor their processes.
But the Winter side argues that if New York sends Jana to Colorado, and if the Colorado court compels her to divulge her source, it would be the “end of journalism.” According to Fox News, no one would ever provide a journalist with secret information if they couldn’t be sure their identities would remain a secret. As Winter claims she won’t reveal her source, she would end up jailed on contempt for her refusal to reveal her source, which would be anathema to New York’s public policy to shield journalists at all costs.
While the Fox News argument is certainly valid, as the media (if it works reasonably well) provides a critical balance of power to the government, and revelation of information that the government would prefer remain secret provides an exceptionally important protection, the argument that requiring Jana Winter to be subject to subpoena like any other American would be the death of journalism is clearly overblown.
Colorado, a state of neither greater nor lesser virtue than New York, is as entitled as New York to enact laws that it determines to be proper to reflect its values. That Colorado offers journalists only qualified immunity, rather than complete immunity, doesn’t make Colorado some banana republic, but a state with a different perspective on the relative merit of trial evidence.
To say this is the death of journalism is to deny the existence of journalism in Colorado. They have newspapers, television news, just like every other state, and it hasn’t shriveled up and died because Colorado’s protection of journalists isn’t absolute. While the virtue of shield laws is clear, so too is the fact that journalism will survive this case. Jana Winter, who may have kvelled in her big diary scoop, may end up realizing the big scoops come at a cost. Or, she may not, since she’ll get to argue again before a Colorado court to protect her source. It’s not a fait accompli that she will have to give it up.
But the bottom line constitutional conflict, the need to protect journalists’ sources versus a defendant’s right to a fair trial and evidence remains the stickier point. While the freedom of the press argument is valid, it’s theoretical. Holmes’ argument is hard, as he is a man on trial, a terribly sick man, who may be executed for lack of evidence.
As much sympathy as can be mustered for Jana Winter who might conceivably see the inside of a jail cell for her refusal to identify her source, one thing is absolutely clear: she won’t be put to death for it. James Holmes can’t say that. Holmes has to win, as no one should die to protect a reporter’s source. No matter how we value the journalist shield law, it’s not worth a life.
Edit: When the issue first arose, the saga was the subject of posts by Gideon at A Public Defender, Ken White at Popehat and Cathy Gellis at, well, Cathy Gellis’ Blog (which I’ve since learned is called, “Statements of Interest.” As these posts show, whenever a clash of constitutional rights arises, it presents an extremely difficult choice. But the decision must be made, and I challenge anyone who puts the rights of journalists over the rights of a defendant to fundamental fairness to agree to push the plunger. It’s an unfair option, but when the stakes involve a person’s life, that’s the bottom line.
Update: The New York Court of Appeals reversed the decision of the Appellate Division, First Department, and by 4-3 vote, held that the right of journalists to protect their source under New York law for conduct that happened elsewhere trumps the laws of other states, the courts of other states, the rights of defendants to obtain evidence or at least be provided due process in their efforts, because
there is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source.
Apparently, the majority is unfamiliar with the right we like to call “due process.”
Unremarkably, the opinion winds its way through the case by eliminating from mention the inconvenient facts that lay bare the gaping holes in the court’s logic. But then the darn dissent goes and exposes the wounds, even though it does so relatively kindly.
While the notion that New York is protective of the journalists’ privilege is, standing alone, a good thing, it pales when viewed in relation to what was sacrificed at the altar: that the defendant’s rights go unmentioned in the decision; that New York has declared war on the other 49 states, whose laws it announces will hereinafter be ignored to the extent they conflict with New York’s, and it has made New York a safe harbor for the unholy alliance between journalists and law enforcement.