Fox News reporter going to jail for protecting sources?

posted at 8:31 am on April 6, 2013 by Jazz Shaw

For the first story of the weekend, let’s start off with one of those things that make you go hmmmm. It’s generally assumed – though not always true – that reporters are not subject to government pressure in terms of handling and protecting their confidential sources, at least as long as they aren’t endangering national security. In some places, so called “Shield Laws” take extra steps to make sure that reporters are free to keep digging and bringing the truth to light for the public. Both of these assumptions play a role in what’s happening out in Colorado right now in a very important trial… and it’s not the one for the Aurora shooter where Ed already told you about a rather shocking revelation. It’s the potential trial of the Fox News reporter, Jana Winter, who brought us the news. The details from Judge Andrew P. Napolitano.

My Fox News colleague, Jana Winter, an experienced journalist of impeccable integrity, is being threatened with incarceration by a Colorado judge unless she reveals the sources for the excellent and highly newsworthy piece she wrote for FoxNews.com revealing the existence of a notebook written by Mr. Holmes before the murders and sent to his psychiatrist, Dr. Lynne Fenton.

Winter’s report cited unnamed law enforcement sources and the defense immediately complained that investigators had violated the judge’s gag order issued days beforehand.

Now, in a witch hunt instigated by defense attorneys, the court seeks to learn who revealed the notebook’s existence to Ms. Winter.

Colorado has one of the “Shield Laws” mentioned above, but there’s a loophole in it. A big ole’ gaping, swallow your house kind of loophole.

But this law, like many, has a loophole in it that might enable a misguided court to incarcerate Ms. Winter if the court concludes that its need to know the identity of the source is greater than Ms. Winter’s need to protect the source, and if the identity of the source cannot be obtained by any less intrusive means.

In other words, we can’t go after a reporter to divulge their sources and throw them in jail unless we can’t manage to get the source to fess up on their own. That really doesn’t strike me as very iron clad in terms of the protection department.

This one should be a no-brainer for observers who are mindful of maintaining a free press. It’s true that there is nothing specific in the constitution which would shield a reporter from such a court order, but we’ve built a pretty healthy precedent over the years in terms of allowing reporters to guard their sources and keep the government honest. And this has nothing to do with the fact that it’s a Fox News reporter. This could be Piers Freaking Morgan digging up dirt on Marco Rubio and the reaction should be the same. If the government can’t manage to keep a lid on their information and stop their own people from talking to the press, the onus is on them to improve security in their department, not on the press to shrivel up and become conciliatory. I do understand how this could do damage to the prosecution’s case – or at least muddy the waters – but that doesn’t change the fundamentals of the case against Ms. Winter one bit.

UPDATE: (Jazz) Attorney Doug Mataconis weighs in with the legal beagle side of the debate.

Oh, and it was “discreet” not “discrete”… thanks.


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Oh well, sucks to be a white heterosexual here in the country legally. Off to the hoosegow you go Jana.

hillsoftx on April 6, 2013 at 8:39 AM

Prosecute laws when convenient.

wb-33777 on April 6, 2013 at 8:41 AM

The government making the Borne Conspiracy out of a hopscotch game(again). What the hell else does the state need? Put him in court, call a victim to the stand, they point at the defendant. Done, over, and monster behind bars. But no, it all has to be rocket science and years of money spent.

“spits on sidewalk”

Limerick on April 6, 2013 at 8:42 AM

Shield Laws are ridiculous. You can’ withhold evidence in a criminal investigation because you call yourself a media member.

commodore on April 6, 2013 at 8:42 AM

In some places, so called “Shield Laws” take extra steps to make sure that reporters are free to keep digging and bringing the truth to light for the public.

I always find it interesting that we’re supposed to trust reporters to bring the truth to light, but when it comes to revealing the identity of their sources, that gets to stay in the shadows.

I don’t see any compelling reason for Ms. Winter to not comply with the court order.

Stoic Patriot on April 6, 2013 at 8:46 AM

Well she revealed something inconvenient, but in the public’s interest.

Isn’t it spelled discreet?

Stoic Patriot on April 6, 2013 at 8:46 AM

For one very important reason. Sources will not come forward and blow the whistle on the corrupt or incompetent for fear of retaliation.

dogsoldier on April 6, 2013 at 8:49 AM

Stoic Patriot on April 6, 2013 at 8:46 AM

And police CI’s as well?

wb-33777 on April 6, 2013 at 8:51 AM

It is refreshing to see a reporter annoying the powers that be.

Instead of propagandizing for their preferred officials, the Washington “press” should emulate this woman’s approach.

MTF on April 6, 2013 at 8:51 AM

Shield Laws are ridiculous. You can’ withhold evidence in a criminal investigation because you call yourself a media member.

commodore on April 6, 2013 at 8:42 AM

Evidence isn’t being withheld.

darwin on April 6, 2013 at 8:52 AM

For one very important reason. Sources will not come forward and blow the whistle on the corrupt or incompetent for fear of retaliation.

dogsoldier on April 6, 2013 at 8:49 AM

Supposedly that’s why we have whistleblower laws for government officials (which seems to be the folks suspected here — police officers): to protect folks from retaliation, not to grant anonymity.

If it was proper to reveal the information, everything’s fine. If not, they get disciplined. I’m sure as hell not about to trust the media to make that judgment. Otherwise we get NBC-edited clips of the Trayvon Martin case. Looks black, indeed.

Stoic Patriot on April 6, 2013 at 8:53 AM

Stoic Patriot on April 6, 2013 at 8:53 AM

Does the judge in this case constitute a government official? I don’t think the source is protected from judicial wrath or misconduct, which incidentally is frequent.

Whistle blower protections probably will not work in this case. Your assumption is that those making the determination on the whistleblowing are straight and honest.

They are not.

dogsoldier on April 6, 2013 at 8:58 AM

You do miss the point, the coverup worked exactly like the edits by NBC and ABC, to ‘set’ the narrative,

narciso on April 6, 2013 at 9:04 AM

Shield Laws are ridiculous. You can’ withhold evidence in a criminal investigation because you call yourself a media member.

commodore on April 6, 2013 at 8:42 AM

Freaking moron.

Holmes has already agreed to life without parole. Colorado wants the death penalty. The question is whether or not he’s insane enough to take that option off the table. The reporter uncovered evidence that this was a planned attack. Which takes the insanity route away. The gag order doesn’t apply to the reporter. Just because someone else may have violated the gag order, she gets punished for doing her job?

rbj on April 6, 2013 at 9:05 AM

dogsoldier on April 6, 2013 at 8:49 AM

He’s neither stoic nor a patriot. He’s a big-time so-con nanny stater.

beatcanvas on April 6, 2013 at 9:08 AM

He spelled out exactly what he would do, now we know the authorities knew about it, and did nothing.

narciso on April 6, 2013 at 9:13 AM

And this has nothing to do with the fact that it’s a Fox News reporter.

…I have a bridge in New York to sell you!

KOOLAID2 on April 6, 2013 at 9:13 AM

Fight the power.

Philly on April 6, 2013 at 9:14 AM

If this reporter was protecting a confidential source who revealed a huge scandal or conspiracy in Big Oil, Big Pharma, or Big Tobacco, I bet the judge wouldn’t wouldn’t even try locking him up. But the Aurora shootings are political, and someone has to be punished for showing one of the gun-grabbers’ favorite memes to be as useless and phony as it is.

Liam on April 6, 2013 at 9:15 AM

It’s begun.

Herb on April 6, 2013 at 9:18 AM

He’s neither stoic nor a patriot. He’s a big-time so-con nanny stater.

beatcanvas on April 6, 2013 at 9:08 AM

There’s no such thing as a so-con that’s not a nanny stater.

Spliff Menendez on April 6, 2013 at 9:18 AM

Freaking moron.

Holmes has already agreed to life without parole. Colorado wants the death penalty. The question is whether or not he’s insane enough to take that option off the table. The reporter uncovered evidence that this was a planned attack. Which takes the insanity route away. The gag order doesn’t apply to the reporter. Just because someone else may have violated the gag order, she gets punished for doing her job?

rbj on April 6, 2013 at 9:05 AM

Why does the gag order not apply to Ms Winter? A competent article by Shaw would have addressed this question.

Basilsbest on April 6, 2013 at 9:20 AM

It applies to her source, which they are leaning on her, to divulge.

narciso on April 6, 2013 at 9:21 AM

beatcanvas on April 6, 2013 at 9:08 AM
There’s no such thing as a so-con that’s not a nanny stater.

Spliff Menendez on April 6, 2013 at 9:18 AM

Or libertarians pushing progressive agenda issues that are not nanny-staters

hawkdriver on April 6, 2013 at 9:22 AM

Maybe she should next go to Sandy Hook and find a confidential informant willing to disclose info on whether or not Lanza used a fully auto weapon of war. She seems to be the only member of the media interested in finding out the truth.

Kissmygrits on April 6, 2013 at 9:25 AM

Without the source, they would still be scapegoating Fenton, and as in Tucson, hiding the negligence or worse of the authorities.

narciso on April 6, 2013 at 9:27 AM

The gag order doesn’t apply to the reporter. Just because someone else may have violated the gag order, she gets punished for doing her job?

rbj on April 6, 2013 at 9:05 AM

She’s not being persecuted because she wrote the story, but because she won’t rat out her source, and she works for Fox News.

BobMbx on April 6, 2013 at 9:27 AM

The gag order doesn’t apply to the reporter. Just because someone else may have violated the gag order, she gets punished for doing her job?

rbj on April 6, 2013 at 9:05 AM

She’s not being persecuted because she wrote the story, but because she works for Fox News.

BobMbx on April 6, 2013 at 9:27 AM

Corrected.

Del Dolemonte on April 6, 2013 at 9:32 AM

The words “reporters” and “truth” should never, ever, be used in the same sentence.

HiJack on April 6, 2013 at 9:36 AM

But this law, like many, has a loophole in it that might enable a misguided court to incarcerate Ms. Winter if the court concludes that its need to know the identity of the source is greater than Ms. Winter’s need to protect the source, and if the identity of the source cannot be obtained by any less intrusive means.

I don’t see the judge making that determination. Defense is arguing that revealing the notebook harmed Holmes’ ability receive a fair trial. They’re grasping at straws. The notebook was going to be entered into evidence anyway, and given the publicity the case has already received, it’s not going to to sway the jury pool against Holmes anymore more than it already is.

Moreover, revealing the source isn’t going to show a level of police misconduct that had any significant effect on Holmes’ rights.

RadClown on April 6, 2013 at 9:39 AM

This could be Piers Freaking Morgan digging up dirt on Marco Rubio and the reaction should be the same.

Yeah, but it wouldn’t, and we all know it.

IrishEyes on April 6, 2013 at 9:43 AM

True, but the new tidbit was the authorities as with Virginia Tech,
Columbine, that shooting in Oakland knew beforehand,

narciso on April 6, 2013 at 9:46 AM

There’s no such thing as a so-con that’s not a nanny stater.

Spliff Menendez on April 6, 2013 at 9:18 AM

There are lots of social conservatives who believe in putting conservative values in practice in their own lives and influencing others by their example and persuasion rather than through government dictate. Conversion by other than free will is coersion and is abhorant.

KW64 on April 6, 2013 at 9:51 AM

Focus, people, Piers Morgan used to tap phones to get his stories, and do a little insider trading along the way, and defame British soldiers in Basra, that is why they would be doing a full court campaign if this happened to him.

narciso on April 6, 2013 at 9:56 AM

This could be Piers Freaking Morgan digging up dirt on Marco Rubio and the reaction should be the same.

But it wouldn’t be.

MT on April 6, 2013 at 10:01 AM

Or libertarians pushing progressive agenda issues that are not nanny-staters

hawkdriver on April 6, 2013 at 9:22 AM

Aw, c’mon, hawk! Some of us are rabid federalists who honestly don’t have an agenda.

John the Libertarian on April 6, 2013 at 10:13 AM

John the Libertarian on April 6, 2013 at 10:13 AM

John, if every Libertarian was like you, honestly like you, the Republican Party would have become unbeatable in any level election. As it is, there were/are enough carrying their weapons grade distain for Social Conservatives on any issue, that they were able to mute and alienate a chief voting block of the gop.

I have nothing but respect for your politics and manner of commentary.

hawkdriver on April 6, 2013 at 10:17 AM

The first amendment isn’t a shield to violate legitimate gag orders. She needs to give up the source or go to jail.

tommyboy on April 6, 2013 at 10:19 AM

I have nothing but respect for your politics and manner of commentary.

hawkdriver on April 6, 2013 at 10:17 AM

You’re a good man, hawk. But I have to agree with you, there are too many Bill Mahers who call themselves libertarians and ruin any sort of brand, and then there are the potheads. It’s a tricky road to live one’s personal life as a social conservative, but not want to legislate it per se.

John the Libertarian on April 6, 2013 at 10:27 AM

He spelled out exactly what he would do, now we know the authorities knew about it, and did nothing.

I think you’re on to something here. They were embarrassed by the revelation. But for the revelation, we might not know to what extent the medical community will go to “prevent discrimination” (i.e., detection) of the possibly criminally insane before they commit a violent act. It’s a classic example of what many have talked about regarding background checks: a person may be considered extremely dangerous by medical or psych professionals, but that information never gets out because of HIPAA and similar laws, so the subject is not prevented from obtaining weapons legally.
At the same time, the defense is P.O.’ed because it has the potential to reveal their knucklehead as sane, depending on how the notes are interpreted…

n0doz on April 6, 2013 at 10:28 AM

Shield Laws are ridiculous. You can’ withhold evidence in a criminal investigation because you call yourself a media member.

commodore on April 6, 2013 at 8:42 AM

The first amendment isn’t a shield to violate legitimate gag orders. She needs to give up the source or go to jail.

tommyboy on April 6, 2013 at 10:19 AM

Then there should be no attorney/client privilege or doctor/patient privilege either based on your “supposed” logic gentlemen, which is to say none.

DevilsPrinciple on April 6, 2013 at 10:29 AM

Then there should be no attorney/client privilege or doctor/patient privilege either based on your “supposed” logic gentlemen, which is to say none.
DevilsPrinciple on April 6, 2013 at 10:29 AM

Neither of those privileges are absolute either and never have been.

tommyboy on April 6, 2013 at 10:32 AM

I wonder if Jana Winters’ MSM colleagues will circle the wagons around her like they did when David Gregory waved around on air a rifle magazine illegal in Washington, DC.

Rhetorical question, I know. But it will be interesting to see the liberal media on display yet again.

Liam on April 6, 2013 at 10:34 AM

He’s neither stoic nor a patriot. He’s a big-time so-con nanny stater.

beatcanvas on April 6, 2013 at 9:08 AM

KW64 on April 6, 2013 at 9:51 AM

Beat, I don’t know what stoic’s real ideology is. I’m a complete conservative and as KW64 says a big powerful state is repugnant.

n0doz on April 6, 2013 at 10:28 AM

All of the above. The “justice” department hates being exposed as corrupt an incompetent. What happens when people really understand that our system of justice is a farce?

dogsoldier on April 6, 2013 at 10:38 AM

Ha ha ha. Gun Ban Style.

John the Libertarian on April 6, 2013 at 10:39 AM

Then there should be no attorney/client privilege or doctor/patient privilege either based on your “supposed” logic gentlemen, which is to say none.
DevilsPrinciple on April 6, 2013 at 10:29 AM

Neither of those privileges are absolute either and never have been.

tommyboy on April 6, 2013 at 10:32 AM

The exception is as noted below. Your remark is wholly unjustifiable in this context as you provided no other informatio as noted below. At a minimum you’re argument is spare.Despite its broad protections, the attorney-client privilege is not absolute. The privilege can be waived if any non-clients witness or overhear communications between the attorney and the client. Communications are also not privileged if they are conducted in furtherance of a crime or include information about a crime that has not been committed yet.

Read more: Federal Rules of Evidence & Attorney Client Privilege | eHow.com http://www.ehow.com/list_6701878_federal-evidence-attorney-client-privilege.html#ixzz2Ph8IoVSN

DevilsPrinciple on April 6, 2013 at 10:56 AM

Shield Laws are ridiculous. You can’ withhold evidence in a criminal investigation because you call yourself a media member.

commodore on April 6, 2013 at 8:42 AM

I agree with this. Reporters deserve no special treatment or protections. This was a fantastic story, Fox News is a desperately needed alternative voice against the state run media, but reporters should be willing to face the consequences for their stories.

Perhaps if we had a truly independent media I might feel differently, but we don’t.

Daemonocracy on April 6, 2013 at 10:57 AM

If the reporter has evidence gleaned from official sources she may be protected by precedent.

Nebraska Press v Stuart considers the constitutionality of a restrictive (“gag”) order entered against the press preventing them from publishing information concerning the defendant’s confession or “other facts strongly implicative of the accused.” The Supreme Court, ruling unanimously, found the gag order to violate the First Amendment. The plurality opinion suggested that restrictive orders were only constitutional when justified by a compelling interest and when no less speech-restrictive alternatives were available to protect fair trials. Concurring, three justices would have held restrictive orders to be a form of prior restraints that were always unconstitutional, while two other justices expressed “grave doubts” that a restrictive order would ever pass constitutional muster. Based on the “freedom of the press” provision of the First Amendment, the court cannot constitutionally restrict the media from printing or broadcasting information about the case, so the only way is to put a gag on the participants under the court’s control.The reporter would not be a particiapnt under the courts control in this instance.

DevilsPrinciple on April 6, 2013 at 11:06 AM

There’s no such thing as a so-con that’s not a nanny stater.

Spliff Menendez on April 6, 2013 at 9:18 AM

That’s flat out wrong. Social Liberals are never reliable fiscal conservatives – Never. Even you could see this with a simple glance at the conservative base and their voting habits.

Social Conservatism necessitates Fiscal Conservatism.

Daemonocracy on April 6, 2013 at 11:06 AM

I agree with this. Reporters deserve no special treatment or protections. This was a fantastic story, Fox News is a desperately needed alternative voice against the state run media, but reporters should be willing to face the consequences for their stories.

Perhaps if we had a truly independent media I might feel differently, but we don’t.

Daemonocracy on April 6, 2013 at 10:57 AM

The Constitution and the SCOTUS disagree with you.

DevilsPrinciple on April 6, 2013 at 11:07 AM

Then there should be no attorney/client privilege or doctor/patient privilege either based on your “supposed” logic gentlemen, which is to say none.

DevilsPrinciple on April 6, 2013 at 10:29 AM

Regarding the doctor/patient privilege: There’s this thing called OhamaCare which completely destroys that concept. Through ObamaCare, not only is the government entitled to every morsel of your medical history, but they also own it.

BobMbx on April 6, 2013 at 11:07 AM

The judge has a duty to see that a fair trial is conducted. As part of that duty, he issued a gag order, restricting the statements and information that the parties can release.

Someone has violated that order and threatened the judge’s ability to do his duty. Depending on the circumstances, he may have to call a mistrial as a result. That person may release further information, which could also trigger a mistrial, or the cumulative effect of ongoing leaks may rise to that level.

Whoever released that information intentionally violated a court order in an effort to tilt the playing field. Whoever that person is and whatever their motivations are (they probably think in some perverse way that they are advancing the cause of justice)they threaten the judge’s ability to do his duty and the defendant’s (and the State’s) right to a fair trial.

The judge needs to know who released the information and why so he can make an appropriate adjustment, for example, removing anyone involved from the trial and punishing them for contempt of court.

If the only way the judge can determine who violated his orders and threatens the orderly administration of justice is the reporter, then it is the reporter. The defendant’s right, as well as the State’s, to a fair trial trumps any reporter’s “privilege” when the source is under court orders and the possibility of a fair trial hangs in the balance.

Reporter’s should understand their ability to protect sources is limited and does not extend to participants in an ongoing criminal proceeding whom they assist in violating the judge’s orders designed to control those proceedings fairly.

If I were on the bench, I would have done the same thing, and more, bringing every bit of leverage I had available to bear until someone admitted the truth or I had to declare a mistrial.

novaculus on April 6, 2013 at 11:15 AM

Shield laws are unconstitutional because they grant extra-constitutional rights to a select group of individuals. Any law us plebs are subject to should also apply to any journalist as well.

NotCoach on April 6, 2013 at 11:19 AM

Shield laws are unconstitutional because they grant extra-constitutional rights to a select group of individuals. Any law us plebs are subject to should also apply to any journalist as well.

NotCoach on April 6, 2013 at 11:19 AM

About what my take is. Well said.

hawkdriver on April 6, 2013 at 11:26 AM

At a minimum you’re argument is spare.
DevilsPrinciple on April 6, 2013 at 10:56 AM

What are you talking about “spare”? All you did was cut and paste examples of exactly what I said – The attorney client privilege is not absolute. Nor it the journalist’s privilege (a much more limited privilege under every jurisdiction and unheard of under early English common law, which is why so many jurisdictions have had to codify it). The journalist in this instance was just providing an unethical source the chance to violate an legitimate gag order. This journalist would have been perfectly entitled to publish this story after the trial and nothing would have been sacrificed by waiting to do so. The privilege is not there to protect her “scoop” or to enable the violation of a legitimate gag order. A fair trial supersedes her desire to scoop her competitors. If she doesn’t cough up her source I will be happy to see her go to jail.

tommyboy on April 6, 2013 at 11:29 AM

At a minimum you’re argument is spare.
DevilsPrinciple on April 6, 2013 at 10:56 AM

Also, it’s hard to take someone serious who doesn’t know the difference between your and you’re.

tommyboy on April 6, 2013 at 11:32 AM

[DevilsPrinciple on April 6, 2013 at 11:06 AM]

Sure, but that has nothing to do with this case. Thee was no gag order on the press. The gag order applies to the parties to the case.

Dusty on April 6, 2013 at 11:36 AM

Shield laws are unconstitutional because they grant extra-constitutional rights to a select group of individuals. Any law us plebs are subject to should also apply to any journalist as well.

[NotCoach on April 6, 2013 at 11:19 AM]

Well, I don’t know that shield laws, generically speaking, are, but the ones that protect a class of people performing a function, while excluding others performing the same function, should be. Some states have laws based on function, interpreting the concept as someone who is gathering news in order to make it known to the public.

Dusty on April 6, 2013 at 11:47 AM

Unbelievable how far this state has fallen in such a short amount of time.

jawkneemusic on April 6, 2013 at 11:52 AM

I wonder what Colorado’s ‘Discovery’ laws are? What is the prosecution obliged to turn over to the defense? Worse, what can the prosecution hide from the defense?

ss396 on April 6, 2013 at 11:55 AM

I haven’t read all the comments but I’d be willing to be that this lady would not be prosecuted if the information leaked had been beneficial to the murderer.

Cindy Munford on April 6, 2013 at 11:56 AM

If I have my “Law and Order” correct, psychologists and psychiatrists have to contact the police if they feel a patient is a threat and it sounds like one such professional did that. What we don’t know is if the police investigate and found no creditable threat or they just didn’t investigate at all. I hope someone comes up with a better answer than those two because I don’t like either. Remember this is the state that is trying to make sure that only the likes of Holmes can get firearms.

Cindy Munford on April 6, 2013 at 12:02 PM

She should do whatever time “the court” deems appropriate.
THAT way, she can become a bonafide martyr. It’s all good!
The truth hurts, eh Nanny “D”State?
~(Ä)~

Karl Magnus on April 6, 2013 at 12:24 PM

If I have my “Law and Order” correct, psychologists and psychiatrists have to contact the police if they feel a patient is a threat and it sounds like one such professional did that.

Cindy Munford on April 6, 2013 at 12:02 PM

Maybe, maybe not. I don’t know if they said when she contacted the police, how she contacted the police, and specifically what she said to the police. Also, didn’t he drop out? Was he even a student at the time of the shooting? Also, didn’t he live off campus? I just dont’ remember a lot of the details these many months later.

Blake on April 6, 2013 at 12:30 PM

I think Holmes will be shielded by the Democratic Cabal. If he was brainwashed into doing his act as part of the left’s disarmament agenda, it’s likely we’ll never get to the bottom of it.

Then there is the strange coincidence of the Sandy Hook killer’s father working for the one company that is more concerned with opinion shaping than selling products or providing a service ( GE ) and brother attending a school that is more concerned with opinion shaping that education ( Quinnipiac ).

I just get the feeling that no one credible is going to be let anywhere near these investigations.

Buddahpundit on April 6, 2013 at 12:38 PM

You’re a good man, hawk. But I have to agree with you, there are too many Bill Mahers who call themselves libertarians and ruin any sort of brand, and then there are the potheads. It’s a tricky road to live one’s personal life as a social conservative, but not want to legislate it per se.

John the Libertarian on April 6, 2013 at 10:27 AM

heres how I do it.
states rights.
let the voters of each state determine their destiny.
state does not conduct itself the way you want, move to one that does.
but I digress.

dmacleo on April 6, 2013 at 12:38 PM

has bob woodward said anything about this?

dmacleo on April 6, 2013 at 12:39 PM

If I were on the bench, I would have done the same thing, and more, bringing every bit of leverage I had available to bear until someone admitted the truth or I had to declare a mistrial.

novaculus on April 6, 2013 at 11:15 AM

so you would use the government to force someone to do something to make your job easier.
nice.

dmacleo on April 6, 2013 at 12:41 PM

Blake on April 6, 2013 at 12:30 PM

I truly don’t either so I can’t answer your questions. As far as I know this may be a CYA move on the psychologist’s part. The public is starting to put a lot of onus on professions to make judgement calls when they don’t have all the facts, such as teachers making child abuse notifications for bruises on a child. It seems that a lot of those calls are going to hurt someone no matter the outcome. If I remember correctly the VA Tech shooter was allowed to opt for anger management classes rather that a conviction that would have put him into the system making gun ownership, if not impossible, certainly difficult.

Cindy Munford on April 6, 2013 at 12:41 PM

I have yet to see one iota of justification on why they need the source.

The psychiatrist has stated she informed the police. They are not disputing that.

Why does anyone need to know who gave that information to the reporter?

The only reason they could have for wanting the reporter’s source is to punish the source-that is not a goal which should overcome the shield law.

Am I missing something?

talkingpoints on April 6, 2013 at 12:43 PM

Anyway, shouldn’t Fox News’ response include a sudden and intense interest in any irregularities in the upper reaches of Colorado’s judiciary? ‘Ink by the barrel’ is a fearsome instrument when used.

PersonFromPorlock on April 6, 2013 at 1:02 PM

Cindy Munford on April 6, 2013 at 12:02 PM

Blake on April 6, 2013 at 12:30 PM

She did apparently notify campus police that he was was making threats and was in her opinion dangerous. Whether campus police had jurisdiction at that time or by the time they had investigated, or if they investigated, remains unclear. If they didn’t have jurisdiction, their duty to pass along the doctor’s allegations was possibly hindered by medical and or educational privacy law. Its just not clear yet what happened and how it sorts out.

The doctor herself may have had an ethical duty to do more than pass the ball to campus police. She certainly could have initiated civil commitment proceedings if she believed he posed a threat to himself or others, and may have had a duty to do so.

novaculus on April 6, 2013 at 1:04 PM

so you would use the government to force someone to do something to make your job easier.
nice.

dmacleo on April 6, 2013 at 12:41 PM

I would do my duty to conduct a fair trial. That includes sanctioning parties and their representatives who violate the Court’s orders designed to protect the right to a fair trial, and if necessary non-parties who abet contempt of the Court’s orders. If a fair trial is rendered sufficiently unlikely by misconduct, I would also declare a mistrial. But that is a last option to be avoided if a fair trial can still be conducted.

That is a judge’s duty, and they swear an oath to uphold and fulfill that duty.

novaculus on April 6, 2013 at 1:18 PM

Am I missing something?
talkingpoints on April 6, 2013 at 12:43 PM

What if the source is a subscribed witness in the case?

tommyboy on April 6, 2013 at 1:23 PM

novaculus on April 6, 2013 at 1:04 PM

So the leak could be from campus police? Just my opinion but if I thought someone was a real threat, campus police isn’t where I would turn. Maybe it’s the right call, when dealing with jurisdiction but in my mind that isn’t a sufficient response. I think it is hard enough to label real threats considering doctor patient privileged and I have always thought a really sticky portion of current background check for gun ownership. By the same token, I don’t want doctors to start being the arbitrator of who is or isn’t fit for gun ownership, I think we know they would curtail it significantly. There are no easy answers, no matter what the idiots in D.C. say.

Cindy Munford on April 6, 2013 at 2:03 PM

novaculus on April 6, 2013 at 1:18 PM

I have a question. If (big if since I don’t know the specifics) the “regular” police had been aware and either deemed him not a threat or had not investigated him at all, would this have not been a case of whistleblowing on incompetence that the public might need to know about? I guess it could have been addressed after Holmes’ fair trail but these things can go on for years and years.

Cindy Munford on April 6, 2013 at 2:08 PM

Cindy Munford on April 6, 2013 at 2:03 PM
Cindy Munford on April 6, 2013 at 2:08 PM

Winters cited “law enforcement sources”. The LEOs who had knowledge have all been questioned and deny under oath being the source. You can’t have a fair trial if there is undisclosed bias on the part of a witness or an agent or representative of a party. Anyone connected to a party who violates the Court’s orders threatens the orderly administration of justice, and in this case the defendant’s counsel have successfully argued their client’s right to a fair trial is jeopardized unless the source is disclosed. At the very least, if the source is a witness, the defendant has a right to challenge the credibility of the witness. Would a witness who ignores a court’s orders take an oath to tell the truth seriously?

The parties’ joint right to a fair trial supersedes the public’s right to know right now, which is not at all the same a s the public’s right to know generally. Presumably the facts would become known publicly at trial if relevant or shortly thereafter when records are unsealed if not.

Samour concluded that the defense attorneys had failed to properly question police detectives who had seen the notebook, so he deferred a decision until April 10. At that point, another detective will testify and Samour will decide if Winter must take the stand and face that difficult choice.

novaculus on April 6, 2013 at 3:07 PM

Can we post her bail if she is jailed?

A Fox Babe is in trouble. Time to kick into action.

KirknBurker on April 6, 2013 at 3:23 PM

heres how I do it.
states rights.
let the voters of each state determine their destiny.
state does not conduct itself the way you want, move to one that does.
but I digress.

dmacleo on April 6, 2013 at 12:38 PM

I’d be fine with that. I’ve just had a discussion with a Libertarian on Facebook in reference to the relationship of the 9th and 10th Amendments. His take was that states have no right to enact law.

hawkdriver on April 6, 2013 at 5:52 PM

A Fox Babe is in trouble. Time to kick into action.

KirknBurker on April 6, 2013 at 3:23 PM

What’s Obama’s opinion on Jana’s appearance? A comment from shotgun Biden might be much more entertaining though. If anyone deserved to be gagged, Joe would be the one.

racquetballer on April 6, 2013 at 7:18 PM

Gentlemen and Ladies:

Just because Holmes had a diary where he planned out the shooting does not mean that he is not bat-shiite crazy. For example, he could have been transcribing what the ‘voices in his head’ were telling him to do.

On another note: Millions of taxpayer dollars will be wasted on a capital murder trial, just for the outside chance that he will get the chair. On the outside chance he gets the chair, millions more will be spent keeping him alive legally, for another twenty years or so. Come on, Colorado, save the peoples money. Accept the plea offer.

Why go for capital murder? All the Big Gun prosecutors just chomping at the bit for t.v. face time.

BigAlSouth on April 7, 2013 at 6:32 AM

Why wouldn’t the prosecutors want the jury to know that this guy is nuts, why suppress it ? “What do they know & when did they know it?”
Did the shrink violate her patients rights before the shooting? If so, the real crime is the implied negligence of local authorities.
We from afar can clearly see that Holmes is touched.
Not to mention that it fits into the conservative argument that weapons and mental illness do don’t play well together.

kregg on April 7, 2013 at 9:48 AM

Institutional negligence probably won’t matter, regardless of the notebook, or the referral. You can’t commit someone for making private threats, and a sketch of someone shooting is not the same as standing in a theater holding loaded weapons (which is probably the only event here that the police would have been able to act on).

virgo on April 7, 2013 at 12:01 PM

Pentagon Papers. This will go to the Supreme Court, I’m sure.

unclesmrgol on April 7, 2013 at 5:11 PM

Anyone connected to a party who violates the Court’s orders threatens the orderly administration of justice

novaculus on April 6, 2013 at 3:07 PM

Again, Pentagon Papers. Deep Throat.

The defense should be ecstatic that an element of the prosecution’s case has just been disclosed — one that any jury empaneled on this case will get to hear and see.

unclesmrgol on April 7, 2013 at 5:16 PM

Whistle-blower laws should be vigorously enforced when it comes to cases of government corruption and malfeasance. If that were the case, we wouldn’t need shield laws.

If you’re using a confidential informant to release juicy details on a case that hasn’t been tried, you’d better be prepared to spill the beans or go to jail.

Wendya on April 7, 2013 at 11:12 PM