The Aurora Mass Shooting, Choice of Law, and Newsgatherer Shield Statutes

Reporter, who is based in New York, gathers information in Colorado, related to a Colorado crime. She returns to New York, but is subpoenaed to appear in Colorado court proceedings, to testify about her confidential sources. Should New York newsgatherer shield law or Colorado newsgatherer shield law apply? An interesting and unusual choice of law problem, on which New York’s highest court split 4-2-1 yesterday in In the Matter of Holmes v. Winter (N.Y. Dec. 10, 2013). An excerpt:

New York’s Shield Law provides an absolute privilege that prevents a journalist from being compelled to identify confidential sources who provided information for a news story. In this case, the issue is whether it would violate New York public policy for a New York court to issue a subpoena directing a New York reporter to appear at a judicial proceeding in another state where there is a substantial likelihood that she will be directed to disclose the names of confidential sources or face being held in contempt of court.

Petitioner James Holmes is charged with multiple counts of murder, among other offenses, arising from a mass shooting at a midnight screening of a “Batman” movie at an Aurora, Colorado movie theater. Twelve people were killed during the incident and 70 others were wounded. Holmes was arrested at the scene soon after the violence ended. Anticipating that the shootings would generate widespread media attention, the state court presiding over the criminal charges—the District Court for the County of Arapahoe—immediately issued an order limiting pretrial publicity in the case by either side, including law enforcement.

On July 23, 2012, while executing a search warrant, the police took possession of a notebook that Holmes had mailed to a psychiatrist at the University of Colorado before the shootings. Holmes asserted that the notebook, which apparently contained incriminating content, would be inadmissible at trial because it constituted a privileged communication between a patient and a psychiatrist. Two days later, the District Court issued a second order addressing pretrial publicity, precluding any party, including the police, from revealing information concerning the discovery of the notebook or its contents. That same day, respondent Jana Winter—a New York-based investigative reporter employed by Fox News—published an online article entitled: “Exclusive: Movie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attack.” In the article, Winter described the contents of the notebook and indicated that she learned about it from two unidentified law enforcement sources. Other news outlets also published stories revealing the existence of the notebook.

In September 2012, Holmes filed a motion for sanctions in the District Court, alleging that law enforcement had violated the pretrial publicity orders by speaking to Winter and maintaining that their actions undermined his right to a fair and impartial jury. The District Court then conducted a hearing to investigate the leak. Holmes called 14 police officers who had come in contact with the notebook or had learned about it prior to the publication of the Winter article. All the officers testified that they had not leaked the information to Winter and did not know who had.

After the hearing, Holmes sought a certificate under Colorado’s version of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings (Colo Rev Stat § 16–9–203)—the first step in the two-part process for compelling an out-of-state witness, such as Winter, to testify or otherwise provide evidence in Colorado. Holmes explained that he sought Winter’s testimony and any notes she had created in relation to the article because she “appears to be the only witness that can provide the court with the name of the law enforcement agents that leaked privileged information.” In January 2013, the District Court issued the requested certificate, finding that there was no other witness “that could provide the names of the law enforcement agents who may have provided information to Jana Winter” and that potential violation of the pretrial publicity order was a serious matter. The court also noted that Winter’s article had described her sources as two law enforcement officers and, since all of the officers who dealt with the notebook had denied having spoken to Winter, the crime of perjury in the first degree “may be implicated.” Thus, the Colorado court found Winter to be a “material and necessary” witness in the sanction proceeding and therefore requested that she spend three days in travel and testimony in the District Court at a specified date and time.

After the hearing, Holmes sought a certificate under Colorado’s version of the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Proceedings (Colo Rev Stat § 16–9–203) …. In January 2013, the District Court issued the requested certificate, finding that there was no other witness “that could provide the names of the law enforcement agents who may have provided information to Jana Winter” and that potential violation of the pretrial publicity order was a serious matter…. Since Winter works and lives in New York, Holmes then commenced this proceeding in New York [trial court] pursuant to CPL 640.10(2), New York’s codification of the reciprocal Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases, seeking the issuance of a subpoena compelling Winter to testify and provide evidence in Colorado….

The majority held that New York’s very strong privilege applied.