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James Holmes Takes Reporter Shield Battle to Supreme Court

By William Peacock, Esq. on March 07, 2014 | Last updated on March 21, 2019

James Holmes, the Aurora, Colorado mass murderer, hasn't gone to trial yet, but his attorneys are already reaching out to the Supreme Court. Why?

The reporter's privilege (or "shield") and choice of law issues.

Shortly after the shooting, an unknown source(s) leaked word of a notebook, sent to a University of Colorado psychiatrist, that contained drawings and plans for the movie theater shooting. The notebook was under a gag order. Holmes' attorneys sought to compel testimony of reporter Jana Winter about her sources, but a New York court stepped in and applied that state's reporter's privilege.

The shooting, the notebook, the gag order, and the disclosure all happened in Colorado.

The Notebook

Winter's report, for Fox News, discusses a notebook that contained stick figure drawings of the planned shooting. The notebook was sent to a professor that provides outpatient treatment, though it was not confirmed whether or not Holmes was a patient.

The story also contains conflicting accounts of when the notebook arrived -- before or after the shooting. Sources told Winter that the notebook had possibly been sitting in the university's mail room or on a loading dock, while the university denied the report and told Winter that the notebook had arrived after the shooting and was discovered, and reported to the police, on the day of its arrival.

The subtext is obvious: if it arrived early, and had been delivered properly, the psychiatrist could have divulged the information to the police and prevented the attack. Either way, the notebook and its contents were the subject of a gag order by the trial judge, a gag order that was, quite obviously, violated by one or more of the fourteen people who knew about it.

Unmask the Sources? Not in New York

Holmes' motivation for unmasking the leaky sources is obvious: not only did leaking the notebook arguably enganger his right to a fair trial, but lying about leaking is impeachment material.

Unfortunately for Holmes and his counsel, Winter was in New York, and New York's high court, in a 4-3 decision, held that their own reporter's privilege, which is extremely strong, applied, and the Colorado court could not compel Winter to divulge her sources [PDF].

One dissenting judge argued that Colorado's law should apply, since the communications took place in that state.

NY Ruling a Violation of Uniform Act to Secure the Attendance of Witnesses?

Holmes' attorneys, in a filing submitted to the Supreme Court yesterday, argued that the New York court's ruling "eviscerated" the Uniform Act to Secure the Attendance of Witnesses, a law that allows defendants to subpoena out-of-state witnesses in criminal cases, reports Reuters. The petition also warns of the "slippery slope of exceptions" that could deny defendants fair rights.

(Sidebar rant: "Eviscerated" and "slippery slope" are the legal-equivalent of corporate speak. Seriously, there's no way your petition is going to create synergy amongst the justices and position you as a thought leader when you leverage modular inclusion of concepts repeated ad nauseum. See how irritating that is?)

A copy of the petition has not worked its way online yet, but it is interesting to note that the Reuters account does not mention the choice of law issue.

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