The Jana Winter Conundrum: Every Man’s Evidence (Update)

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.

14 thoughts on “The Jana Winter Conundrum: Every Man’s Evidence (Update)

  1. BL1Y

    “No one should die to protect a reporter’s source.”

    Not sure that’s the rule you want. I can imagine plenty of scenarios where the government would demand a reporter hand over a source in order to prevent (possible) future deaths.

    I’d make the argument in a different way. Freedom of the press is a freedom we possess against the government. This case however is the defense, another private citizen, seeking the identity, and we don’t have constitutional rights protecting us from other citizens. The government might be the mechanism for getting the identity, but it’s not the government that’s initiating the process, and that distinction makes all the difference.

    1. SHG Post author

      You’re absolutely right, and I left out that critical element. I hereby amend my rule, nunc pro tunc, to read, “no one should die at the government’s hand to protect a reporter’s source.”

      1. BL1Y

        In this scenario, it’s known that the source is a detective central to the prosecution’s case.

        Would you reach the same conclusion if this were not known? If the source could be anyone from a key witness to some low level clerk who won’t be called to testify and whose corruption would not be useful for the defense? Something like a guy who has to sit at the evidence locker all day, and in this case there isn’t an issue with chain of custody or the like.

        1. SHG Post author

          Your question goes to the critical nature of the information. If the info wasn’t critical to the defense, then the Colorado qualified immunity would shield the journalist from disclosure. That’s the way Colorado intended it to work.

  2. oren

    Here’s the one thing I don’t follow: the diary is already out there so how does the identity of the cop who leaked it stands between Holmes’s life and death?

    1. SHG Post author

      That’s an excellent question, incisive and well framed. Have you ever considered becoming a reporter?

      The issue of who leaked the diary raises two critical issues: first, that a “law enforcement source” violated the court’s gag order. Second, that a “law enforcement source” may have committed perjury when the court questioned officers about who leaked the diary. Committing the crime of perjury is a critical thing when a cop testifies at trial.

      And as noted in the Popehat post, it’s a curiosity why Jana Winter was so taken by the opportunity to make a huge scoop that it never dawned on her to investigate the unholy alliance between journalists and law enforcement, where they are happily complicit in lies, if not the evisceration of a defendant’s constitutional rights, if it gets them a big score. If journalists want the high moral ground on constitutional rights, then they can’t pretend not to notice when leaks come their way.

      1. oren

        Speaking from experience, defense attorneys are just as adept as law enforcement in leaking to the press when it behooves them. And as much as it can impede on lawyers’ jobs, I really don’t think defendants’ rights should be a factor in journalists’ reporting (should jail house interviews start with Miranda warnings?). Also, there’s no indication the officer’s lied; if anything, Winter’s scoop helps the defense.

        More fundamentally, these answers don’t really get at my question. Yes, the officer’s credibility might be at issue (inasmuch as he/she violated a gag order), but I think that falls far short from determining the defendant’s fate, given that the substantial and material evidence–the diary–is out there regardless.

        1. RKTlaw

          Have you ever represented someone at the penalty phase of a death penalty trial? EVERYTHING is important. If even one juror is angry enough at law-enforcement’s actions in a case and, therefore, believes it is worth sparing the Defendant’s life, then it matters more than any other concern.

        2. SHG Post author

          Time for a civics lesson. Criminal defense lawyers are not public employees who come into possession of information and/or evidence in the course of their official duties rather than as private individuals, who are free to do as they please with it. Cops get information and/or evidence solely because of their public function. They have a duty to maintain it in accordance with that function, and they are not entitled to do with it as they please.

          Criminal defense lawyers owe an undivided loyalty only to their client. These are institutional distinctions, and your comparison of the two reflects a misunderstanding of their relative roles in the system and the duties each position carries.

          As for the cred, eleven investigating officers in the Holmes case were questioned under oath as to whether they leaked the diary. They answered, under oath, that they did not. So did someone lie? It looks that way, unless it was another person who leaked the diary who wasn’t asked. And if it was one of the eleven, they not merely lied, but committed the crime of perjury.

          As testimony Monday showed, a number of investigators handled the notebook. Four — CU-Denver Police Chief Doug Abraham, Aurora police detectives Alton Reed and Matt Fyles and an Adams County bomb-squad officer — said they touched it at various points. Five in total said they saw inside the notebook, most notably when Reed fanned the pages while preparing a search warrant to seize the notebook.

          But none of the officers admitted to getting a good look at what was on its pages.

          No officer admitted to speaking with the media.

          That a police officer, upon whose testimony at trial a jury will rely, is willing to commit the crime of perjury, is about as critical as it gets. You don’t think cops committing perjury is a substantial problem. You don’t think that if they are willing to commit perjury here, they will be similarly willing to commit perjury in the balance of their testimony?

        3. UltravioletAdmin

          It’s not just one case.

          We have a cop who lied under oath. Every case he’s ever done is now tainted. Every case he may do in the future is tainted. Honestly, the DA here should want to know, so they can avoid him, or prosecute him. But they don’t because the headache and problem of a known lying police officer is huge.

  3. John

    The statement, “this will be the end of journalism” seems to be the oft heard refrain whenever this issue comes up. I’m not going to say it’s completely wrong, but journalism has been around for a long time, and I’m sure a few reporters over that time have divulged sources. Yet journalism has continued. Also, I wonder how many people, like this detecive, turn over information to reporters believing/hoping that the journalist won’t reveal the source and will be willing to go to jail to protect them. This is versus the people who believe that the information needs to be revealed for whatever reason and are willing to take the potential risk (which there is always that risk) that they will be exposed as the information provider. If there are more of the later then journalism will not be dead if Jana Winter is compelled to testify.

    1. SHG Post author

      When a government official leaks to a reporter, it’s for one of two purposes: either he’s a whistleblower, feels compelled to get the truth out while trying to protect his position, or he’s using the reporter to do his dirty work by trying to create prejudice with plausible deniability. I think most reporters can distinguish between the two, but that doesn’t mean they want to. Either one gives the reporter a story.

  4. Ken

    Blood and guts, salacious details, incriminating evidence, or headline-empowering scraps about a case against a criminal defendant are news, and reporters must protect their right and ability to get them.

    The close relationship between law enforcement and the press, the willingness of cops and prosecutors to break the law, whether leaks are designed by the state to undermine a defense, the willingness of law enforcement to lie, and other elements of leaks are not news. All of that pales next to the newsworthiness of LOL WOW LOOK THIS GUY IS CRAZY.

    We know this because journalists are serious and important people and they have decided it. Sure, this is the approach that coincidentally serves their prominence and pocket. But they have society’s best interests at heart.

  5. Pingback: Jana Winter: In The War of Rights, The Defendant Loses. Again. | Simple Justice

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