CENTENNIAL, Colo. - Attorneys for Aurora movie theater massacre suspectare seeking a subpoena to force a journalist to reveal a source that reportedly leaked information concerning the case.
Holmes is accused of the July 2012 mass shooting which took place in a crowded movie theater in Aurora, Colo. Twelve people were killed and 58 others were injured in one of the worst mass shootings in US history.
According to Holmes' attorneys, a law enforcement official close to the case violated a gag order issued by the court by revealing that Holmes' psychiatrist was in possession of a notebook that described acts of violence, allegedly written by Holmes. Defense attorneys are seeking to subpoena journalist Jana Winter. Winter was the first to report that Holmes' psychiatrist had the notebook.
The petition by attorneys for Holmes could cause a serious legal issue.
Colorado is one of 40 states that have enacted so-called "shield laws" protecting journalists. According to these laws, a reporter cannot be compelled by a court to disclose sources except under certain special circumstances.
The Colorado law states:
Reporters can be subpoenaed to testify or to produce documents or other materials only in cases where the party issuing the subpoena demonstrates by a preponderance of the evidence that (1) the information sought from the reporter is "directly relevant to a substantial issue involved in the proceeding," (2) the information "cannot be obtained through any other reasonable means," and (3) a strong interest of the party issuing the subpoena outweighs the interests under the First Amendment of the reporter and the public.
If the court rules in favor of the defendant, Winter will be facing one of the most controversial and feared ethical dilemmas in journalism--to reveal a source who has divulged important information in confidence.
This would be only the beginning of Winter's woes. An affirmative finding in favor of Holmes would result in the court issuing an order to disclose the source. If Winter refuses, she will be found in contempt of court and immediately remanded to jail until she complies with the order of the court.
In Colorado, a judge can issue what is called a "summary judgment." This allows the court to sentence a defendant to up to six months in jail without further proceedings. If the court deems it necessary for more time to be served, it can issue an advisement and inform the defendant of their right to a trial by jury.
At this point if a person is found guilty, Colorado law provides no set limit to the amount of time that a person may serve in jail for the offense. Fortunately, those convicted of contempt rarely serve more than six months, if that, behind bars according to the website of criminal defense attorney H. Michael Steinberg.
In the past, courts have jailed reporters for refusing to reveal sources. A notable incident was the imprisonment of New York Times reporter Judith Miller in 2005. U.S. District Judge Thomas F. Hogan ordered Miller jailed until she agreed to testify before a special prosecutor investigating possible wrongdoing by the Bush administration.
Miller was released from jail after serving more than 60 days when she finally agreed to testify. Miller agreed to comply with the court order only after her source, I. Lewis "Scooter" Libby signed a waiver allowing Miller to speak.