CENTENNIAL, Colo. - The judge in the Aurora theater shooting trial has denied the prosecution's request to cancel a Monday hearing where a Fox News reporter is ordered reveal anonymous sources for a story on accused killer James Holmes.
The New York-based reporter, Jana Winter, cited unnamed law-enforcement officials in a FoxNews.com report where she wrote that Holmes had sent his psychiatrist a notebook with drawings that foreshadowed the July 20 theater attack, which killed 12 and injured 70.
Winter's lawyer argues that New York's "shield law" allows her to keep her sources confidential.
Holmes' lawyers contend that law enforcement officials violated a judge's gag order by speaking to Winter. The defense wants Winter to identify her sources for the story and is requesting sanctions against government officials involved in the leak.
"The Article refers to two unnamed 'law enforcement sources.' I understand that Holmes wants me to identify those sources. I promised my sources that I would keep their identities confidential, and I have done so," Winter said in a document released Friday.
The documents also show Winter told the court she was concerned for her safety after seeing threatening Internet posts related to the case.
"I have also already been harassed, even without stepping foot in Colorado," she said in one of the documents.
In particular, she quotes one recent internet posting that states, "'may you be one of the first killed when the next civil war comes.'"
Winter's affidavit also references another posting, from February 24, that contained personal photographs of her and her deceased parents.
Arapahoe County District Judge William Sylvester granted a request for oral arguments in court Monday about Winter's request to quash the subpoena, but denied her request to skip appearing at the hearing.
-- Shield law --
Meanwhile, Winter is invoking the Colorado Shield Law in asking the judge to quash the defense subpoena requiring her to appear in court Monday to reveal her anonymous sources and produce notes or other documents related to the story.
The defense has requested sanctions against government officials involved in the leak.
In a motion made public Friday, Winter's attorney, Michael Theis, asked Sylvester to issue a protective order for the reporter and quash the subpoena requiring her to testify and produce documents on Monday.
"Being made to testify as Holmes requests will force me to 'burn' not one, but two confidential sources. My reputation as a journalist will be irreparably tarnished among my colleagues and, perhaps more importantly, my future sources," Winter said in her affidavit.
Theis also asked the judge to issue an interim order saying Winter doesn't have to travel to Colorado until Sylvester rules on the reporter's motion that the Colorado Shield Law protects her from having to reveal confidential news gathering information.
Theis says the shield law requires a court to make a determination on whether the defense has shown:
- The identities of Winter's sources are "directly relevant to a substantial issue" in the case.
- The identities of Winter's sources "cannot be obtained by any other reasonable means."
- Holmes' "strong interest" in Winter revealing her sources "outweighs the interests" under the First Amendment of both Winter and "of the general public in receiving news information."
Holmes' defense attorneys filed an objection Friday to Winter's attempt to avoid the hearing. The defense noted that a New York Supreme Court judge had issued the subpoena requiring her to be in court Monday.
Sylvester on Wednesday denied Winter's request to delay the hearing while she asks a New York court to overturn the subpoena.
-- Prosecution and defense argue over gag order --
In court papers filed Thursday, prosecutors blasted a notice filed by Holmes' lawyers claiming that their defendant was willing to accept life in prison without any opportunity for parole if prosecutors dropped the pursuit of a death penalty.
Prosecutors suggested the defense publicly dangling an offer of a guilty plea was a ploy, "filed for the intended purpose of generating the predictable pretrial publicity."
The prosecution also said the defense had violated the gag order barring attorneys and law enforcement agencies from publicly discussing the case outside court.
Prosecutors especially noted that Colorado Public Defender Doug Wilson, who supervises Holmes' defense team, told the Associated Press Wednesday that prosecutors haven't responded to the plea offer.
The defense said its offer was made to prosecutors before Holmes' March 12 arraignment, where a judge entered a plea of not guilty on his behalf.
Prosecutors compared the defense attorney's act of "improperly" publicizing the plea offer to the leak that prompted the Fox News reporter's article.
In essence, the prosecution said the defense's conduct was just as bad the leak to the reporter and the judge should cancel the Monday hearing where Winter would be compelled to reveal her sources. Prosecutors also asked the judge to throw out the defense motion seeking sanctions against whoever leaked the information.
But Sylvester didn't buy the prosecution's argument.
In a brief order made public Friday, Sylvester denied the prosecution's request, saying the hearing on Winter and the information leak would proceed Monday.
The judge wrote that he has an obligation to enforce the court's gag order and determine if any law enforcement officers had violated it by leaking information to the news media.
-- A complete timeline of the case for mobile devices: http://ch7ne.ws/14ubM9u