(AP) By DAN ELLIOTT
A Fox News reporter in New York is appealing a judge’s order to appear in a Colorado court to reveal who told her about a notebook that movie theater shooting suspect James Holmes sent a psychiatrist before the killings, her lawyer said Monday.
Reporter Jana Winter will also seek a stay blocking the judge’s order to testify in Colorado on April 1, attorney Dori Hanswirth said.
The July 20 assault killed 12 people and injured 70 during a midnight showing of “The Dark Knight Rises” in the Denver suburb of Aurora.
Winter reported on FoxNews.com that that the notebook contained drawings foreshadowing the massacre and that Holmes sent it to the psychiatrist before the attack. Winter’s story quoted unidentified law-enforcement officials.
Holmes’ lawyers say the leak violated a gag order and jeopardized Holmes’ right to a fair trial.
Holmes is charged with multiple counts of murder and attempted murder. Colorado District Judge William Sylvester entered a plea of not guilty on his behalf last week after his attorneys said they had too many questions about the constitutionality of Colorado law to advise him how to plead.
Holmes could face the death penalty or life in prison without parole if convicted.
Winters’ case appears to turn on which state’s laws, New York’s or Colorado’s, prevail. New York has a shield law that gives reporters in that state broad protections from having to identify confidential sources. Colorado’s shield law offers substantially less protection.
It wasn’t immediately clear where Winter was at the time she reported the story.
Sylvester ruled in January that Winter’s testimony was the only way to identify the leak. In a hearing a month earlier, nine law-enforcement officers in Colorado denied under oath that they were the source.
Larry Stephen, a New York state court judge, issued an order for Winter to testify after a March 7 hearing.
Hanswirth said the appeal she filed on Winters’ behalf cites the New York shield law. It also argues that Stephen did not make his own determination of whether Winter’s testimony is essential nor determine the hardship to Winter if she has to testify.
The notebook Winter reported on could play a key role in determining Holmes’ fate, especially if he changes his plea to not guilty by reason of insanity.
It was sent to Dr. Lynn Fenton, a psychiatrist at the University of Colorado where Holmes had been a graduate student. Holmes had been a patient of Fenton’s before the shootings.
Prosecutors initially sought access to the notebook but dropped their pursuit, saying they did not want to delay the main court case. Holmes’ lawyers argued the notebook was protected by doctor-patient privilege.
If Holmes does change his plea to not guilty by reason of insanity, Colorado law gives prosecutors access to some of his medical records. It is not yet clear if that would include the notebook.