This week, the Appellate Division of the New York Supreme Court affirmed a decision by a lower court that a Fox News reporter must comply with a Colorado subpoena to testify as a witness — and possibly divulge her confidential sources — in the criminal trial against James Holmes, the alleged gunman of the Colorado movie theater shooting.
In July 2012, Jana Winter released an article that claimed Holmes sent a notebook to his psychiatrist that contained details of his planned attack. Holmes’ defense attorneys, concerned that the notebook leak came from a Colorado law enforcement official and that such information may affect their client’s constitutional right to a fair trial, sought sanctions against fourteen law enforcement officials who knew of the notebook. When none of the officials admitted to leaking information to the media, on January 17, 2013, Holmes’ defense attorneys moved to compel Winter to testify and produce notes from the unnamed sources cited in her article. The Supreme Court of New York County enforced the Colorado District Court subpoena and Winter appealed.
On Wednesday, the New York Supreme Court Appellate Division held 3-2 that Winter is required to testify in Holmes’ criminal case. The opinion, written by Justice Clark, cited the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases (CPL 640.10), which requires a witness to testify in another state. The court held that the petitioner complied with its burden of proof under CPL 640.10 when it secured a certificate from an out-of-state Colorado judge showing that Winter’s testimony was “material and necessary” and that the compulsion to testify would not cause Winter undue hardship as the petitioner would pay for her expenses.
The court held that New York’s shield law does not grant Winter protection from the Colorado subpoena to testify in Holmes’ case. The majority opinion held that Winter will be required to testify in Colorado and that she be subject to any testimonial privileges available under Colorado’s shield law rather than those privileges granted under New York’s shield law. The majority held that “the inquiry into admissibility and privilege remains the province of the demanding State [of Colorado] rather than the sending State [of New York].”
As for the substance of Winter’s testimony, the majority decision emphasized the distinction between compelling Winter to testify and compelling her to divulge her confidential sources, saying that the record does not establish with “absolute certainty” that the Colorado District Court will require Winter to disclose her confidential sources.
The majority opinion also ordered that the court record in New York be unsealed, citing a strong public interest in open access to court proceedings.
Two Justices dissented. The dissenting opinion written by Justice Saxe argued that Winter is protected from appearing in another state where there is a “substantial possibility” that the court will require her to identify her confidential sources. The dissent cited the protection granted to Winter under New York’s state shield law, Civil Rights Law Section 79-h[b].
In response to the majority’s CPL 640.10 discussion, Justice Saxe challenged the majority’s analysis of the “undue hardship” requirement of CPL 640.10. The opinion referenced the initial subpoena for Winter, saying that the January 2013 certificate to compel Winter to testify was ordered to identify who disclosed the notebook contents to the journalist.
Citing New York’s public policy of providing absolute protection for reporters, the dissent argued that the majority is incorrect in its analysis of what constitutes “undue hardship.” The dissent argued that the analysis is not limited to the costs and time of travel and missing work but should also acknowledge that the ordered disclosure of Winter’s confidential sources may affect her career as a journalist. The dissent stated that the majority ignored the “practical reality” of Winter’s situation, and therefore erred in holding that Winter’s testimony would not necessarily require her to divulge confidential sources.
The court battle is far from over. On Wednesday, Fox News filed an appeal notice with the New York Court of Appeals. The appeal will ask New York’s highest state court to reject the lower court’s decision that Winter must comply with the Colorado subpoena.
Samantha Scheller is a 2L at the University of North Carolina School of Law.