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.
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[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.