Jana Winter: In The War of Rights, The Defendant Loses. Again.

There seems to be an inverse correlation between the hyperbole in a legal opinion and the correctness of the outcome.  After all, if the result could be otherwise justified, the need to overstate the case wouldn’t be there.  And the New York Court of Appeals’ 4-3 decision in Holmes v. Winter wasn’t shy:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press.

* * *

[T]here is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source.

None? One might think a defendant’s due process and right to defend is pretty fundamental and well-established, but neither gets a mention. Not even a nod.

Cases like this are hard, as they split like-minded people, compelling them to favor one right or another. It’s not that those of us who honor a defendant’s due process rights are antagonistic toward shielding journalists from disclosing their sources, but that when two rights, both worthy of respect, clash, one must give.  And indeed, one did: the court held the journalist’s shield superior to the defendant’s rights.

Getting there, however, required some salient details be ignored. The backstory of the case is ugly all around.  The appellant is James Holmes, the Aurora shooter, whose insanity led him to murder.  The respondent is Fox News reporter Jana Winter, whose desire for a scoop led to her unholy alliance with police in Colorado and revelation of Holmes’ diary on condition that she not disclose the identities of the two police officers who handed it to her in Colorado.

Bear in mind that the Colorado cops aren’t whistleblowers, revealing dark secrets the government has concealed from the nation, but disclosing evidence they obtained in their role as investigators for the purpose of smearing the defendant. Had it been otherwise, Fox News’ Jana Winter might not have been their first choice of reporter.

The court in Colorado then went through its procedures to determine who violated a gag order, revealed the diaries and tainted the defendant. Every cop who had access to the diary denied, under oath, it was him. These may be the witnesses against Holmes at trial, and it appears that someone was lying.  Now Holmes doesn’t have much with which to defend himself, making everything available that much more significant, and lying cops may be critical.  If witnesses against the defendant are liars, then it matters.

But none of this appears in the opinion.  After extolling the virtues of the journalist shield law, ignoring the defendant’s counterpart, and weighing the value of Winter’s testimony only as to violating the gag order, the Court of Appeals comes down heavy on the side of protecting the right of a journalist to go to a foreign jurisdiction, Colorado, protect the identities of lying cops who seek to smear a defendant, and deny the Colorado court’s ability to decide how its laws apply to protect the defendant’s constitutional rights, all because of New York’s public policy.

While the neglect of so many aspects of the underlying case is disturbing, this aspect of the opinion carries broader implications.

The trial judge in Colorado invoked the Uniform Act to Secure the Attendance of Witnesses from Without the State, a compact which every state joined.  While the conduct occurred within the jurisdiction of Colorado, Jana Winter returned to the comfort of New York. State jurisdiction is a funny thing, since there are no border guards (the TSA aside) to keep Yankees from moving about the country to get sleazy evidence from disreputable cops with which to smear defendants.

Since Jana Winter fled the jurisdiction (see how I used the word “fled” to make it sound more nefarious?), Colorado couldn’t assert jurisdiction over her directly, but had to invoke the compact, which requires its process to be enforced by a court in the local jurisdiction.  Comity, full faith and credit, and just the general idea that the various 50 states need to have some working relationship suggest that honoring the lawful process of other states is a good idea.  And if it was the prosecution’s subpoena, perhaps the courts might agree. But it wasn’t.

Instead, the Court of Appeals focused on New York being the refuge for journalists, no matter where they went to ply their trade and what laws that jurisdiction determined should apply.

Moreover, as a New York reporter, Winter was aware of — and was entitled to rely on — the absolute protection embodied in our Shield Law when she made the promises of confidentiality that she now seeks to honor.

Entitled? Why? Was she unaware as she deplaned in Colorado that it was a different state with laws of its own? Are journalists different from every other member of society (cops, excepted), that ignorance of the law is no excuse? The court offers no basis for this entitlement, and indeed, no rational explanation exists.

When you go to another state, you are subject to its laws.  When you return to New York, you aren’t absolved of responsibility for your conduct elsewhere.  Colorado, like New York, is a real, honest-to-God, state, and while it may make different choices than New York does, it’s allowed to do so. And it’s allowed to demand that people who go there to do a job honor its laws.

By elevating New York public policy, the Court of Appeals spit in the face of the Uniform Act.  It said, “sure, we’ll honor your process, unless we don’t feel like it, in which case we won’t.”  This will come back to cause terrible pain when other states decide that New York process will get the same degree of respect it shows.  If New York takes the position that it need not honor the decisions of Colorado courts, then there is no reason Colorado should respect New York’s.

On twitter, it was all happiness and joy:


Too bad she doesn’t heart the rights of a defendant as much as she hearts the lying cops who smeared him.  Too bad that New York hearts her right back.

20 comments on “Jana Winter: In The War of Rights, The Defendant Loses. Again.

  1. Jim Majkowski

    Am I wrong to be reminded of long ago laws granting sanctuary to a fugitive who could get within the walls of a church? Judge Smith’s dissent, which is reflected in our blawger’s argument, seems to me to be more strongly reasoned. But the cynic in me wonders whether the decision would have been the same had the Colorado prosecutors sought Ms. Winter’s evidence.

    1. SHG Post author

      That thought occurred to me as well, pondering what sort of hyperbole would be offered to explain why it was totally different when the prosecution in some far off jurisdiction needed a journalist’s evidence to convict some heinous criminal to protect the children. But to suggest such thing would make me as cynical as the majority here, and I’m reluctant to give any more ammo to my detractors.

      1. Jim Majkowski

        May I try? Aat least if what is sought is substantive evidence of a fact? In the Winter case, the two Colorado officers’ meritorious two objectives, informing the public and self-preservation, were, on balance, better for the public at large than making available to a defendant tenuous evidence that police officers, who were not actual eyewitnesses, but only investigators, might have sometime in their past told a fib and such fib’s evidentiary weight would be negligible to the ultimate determination of culpability, and, indeed, might have been unduly prejudicial to the state’s case. We ignore the part where the “fib” was made in the course of their official duties, was contrary to express court order, and was almost surely made purposely. And that the opinion says the issue of materiality is reserved to the demanding jurisdiction.

        BTW, have you an opinion on whether the state of Colorado ought have joined in the action and honored its obligation to provide the defendant “compulsory process for obtaining witnesses in his favor”?

    2. jakee308

      Isn’t it possible that the prosecutor may be responsible for the “leak” (or the instigator)?

      It has seemed to me that sometimes prosecutors appear to use leaks and press releases to attempt a distortion of the defendants reputation or of the facts of a case to poison the jury pool and/or appear better positioned for a win so as to intimidate them into a plea deal.

    3. Ken Bellone

      Not even that long ago, but perhaps not relevant, so I’m risking SHG’s wrath, but I’m hopeful Scott’s in a Friday & Holiday mood., Even more recent is the “jihadists” who may have killed a friend an darted into the nearest mosque, where return fire in outside the ROE. Not arguing sides, as one man’s jihadist is another’s……

  2. Gloria Wolk

    Two words: Judith Miller.
    She is a Pulitzer Prize winning journalist for the New York Times who was sentenced to 10 days in jail for refusing to reveal her sources.

    1. SHG Post author

      Yes, Judith Miller. We know who she is and what happened to her. While I suppose your two words make infinite sense to you, your point may not be clear to anyone else, myself included. Are you arguing that if Jana Winter believes so strongly in the shield and keeping her promise of confidentiality, then she should return to Colorado, refuse to answer and suffer the consequences of contempt by braving a jail cell?

      If so, I agree. If that’s not your point, then I have no clue what it is. Either way, you would have done far better to actually make a point than to write “two words.”

        1. SHG Post author

          I wouldn’t be that harsh about it. One of the virtues of a blawg with a perspective is most people share it, to some extent or another, and speak the same language. As this shows, it ain’t necessarily so. I may just be a bit thick.

  3. Gloria Wolk

    Apologies for being obscure about my meaning when I referred to Judith Miller. She had the courage to support her rights. Do we deserve rights that we are not ready to defend? If Colorado does not have a shield law (I do not know whether or not they do), would a return to Colorado to argue for this possibly result in one? Or at least broadcast the importance to the public of enacting a federal shield law?

    I have no reason to respect anything Fox does but they do have the money to hire hot shot attorneys to fight for journalists. In today’s world, with so much of major media acting like an echo chamber for powerful interests rather than challenging government violations of our rights, I would have liked to see Fox News take a stand and fight for these rights.

    1. SHG Post author

      (Don’t forget to use the “reply” button to reply, please.)

      First, Colorado has a shield law, but it’s not absolute like New York. Second, Fox used (and I’m quite sure paid for) lawyers in New York and won.

  4. Wrongway

    And Now I have to rethink this aspect of the journal that was leaked..
    I haven’t really followed this case closely at all..
    That’s a great question,.. Does the ‘right not to disclose a source of info’ overide a courts gag order ?
    On it’s surface, I would say yes, but then pointing out that a tainted jury pool (which is undoubtedly hard to achieve before the leak is made even harder now..), while maybe not a violation of his ‘rights’, does that leak interfere with due process & a fair trial ?
    Thanx for posting this

  5. Lurker

    The issue, as you frame it, is not only about whether a man should live or die, but about the principles of federalism. While I oppose the death penalty in all cases, I think that your argumentation extends wide over the US borders. In Europe, we have also free movement of people, and laws requiring witnesses to appear from other member states.

    In all European legislation on cooperation in criminal justice matters, we have the public policy exception. There is no guarantee that one member state does not make an unconscionable request or that its laws would not be in contradiction with the things that another holds sacred. (Julian Assange tried to argue this point, among others, when Sweden requested his extradition from Britain, but lost.)

    So, I see no reason to assume that public policy exception should not be used in the US also. States are sovereign, at least as a legal fiction, and they have often very different internal public policies. So, it is quite possible that the law in one state is fundamentally in contradiction with the law in another. In such case, the sovereignity of the state should be respected more than the right of the requesting state to have its laws executed.

    1. SHG Post author

      Interesting, but I’m not sure the analogy holds up well and New York/Colorado is the same as Spain/France. While the latter are foreign nations who choose to cooperate, the former are part of a larger sovereign who is supreme and imposes certain requirements upon them, whether they like it or not.

      Also, these aren’t “contradictory” public policies, but very similar public policies that aren’t exactly the same. If any difference, no matter how slight, justifies ignoring the compact, then the compact means nothing.

      1. Lurker

        I beg to disagree. As long as we are in the realm of theory, the difference is not that large. The US constitution does not really oblige the states to any form of cooperation in criminal justice. This is the realm of the states, which are, in the US law, sovereign.

        On the other hand, member states of the European Union are not completely sovereign either. Most powers that would fall under the commerce clause in the US are delegated to the Union in Europe, too. In these areas, EU is the sovereign authority and its legislation supercedes even the member state constitutions. The union has in these areas also the sole treaty power. However, in criminal cooperation, the member states retain their sovereignity, and the cooperation takes the form of “framework decisions” established by the Council, which are then implemented in the national legislation, just like interstate compacts. In addition, the “framework decisions” have automatic execution provisions, just like the US interstate compacts, although with clearly outlined public policy (and state security) exemption provisions.

        Legally, then, the difference between a US state or a European Union member state in this matter is actually very small. And your example, Spain-France cooperation is an example of extremely smooth judicial cooperation. The public policy matters arise very seldom.

        1. SHG Post author

          You may not be aware of the supremacy and the full faith and credit clauses. They may alter your equation. In any event, you’re allowed to disagree.

          1. Lurker

            You are only partially corrct. The article 288 of the treaty on the functioning of the European Union states very clearly that the regulations, directives and decisions of the Union are binding. And the jurisprudence of the Court of the European Union gives them precendence over all national legislation, including national constitutions. This has the same content as the supremacy clause.

            The full faith and credit is not a constitutional (i.e a treaty-level), but a statutory provision. For civil issues, the main portions are codified in the so called Bruxelles I and II regulations, which are statutory European law, but the full legal machinery includes some 20 directives and regulations. The codifications of criminal justice faith and credit provisions have a similar variety, but anyhow, today’s European justice gives full faith and credit for all member state judgements and convictions, with only a few exceptions. In civil law, the implementation is by the ordinary European legislation. In criminal law, it is by “framework decisions”.

            So, theoretical discussions of federalism have applicability to both US and EU. On practical level, things are different.

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