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Judge postpones decision on whether reporter needs to testify in Holmes case

Doug Pensinger / Getty Images file

Foxnews.com reporter Jana Winter returns to the court house after a midday recess to face Arapahoe County District Judge William Sylvester regarding evidence in the case of Aurora theater shooting suspect James Holmes at the Arapahoe County Justice Center on April 1, 2013 in Centennial, Colorado.

A journalist who could face jail time if she refuses to reveal the source of a report detailing the contents of a notebook Colorado massacre suspect James Holmes sent his psychiatrist won a temporary reprieve on Monday.

Judge Carlos A. Samour Jr., who is presiding over the Aurora movie theater shooting case, ruled that he will not make Fox News reporter Jana Winter testify until he decides if the notebook will be allowed as evidence in the first place.

The move reflects the argument made by Winter's defense attorneys that the testimony is not yet "ripe" for ruling.

"The notebook may or may not be introduced, and its contents may or may not be of significance. Given these uncertainties, the record is inadequate," Samour wrote in his order Monday

The judge said at a ruling last week that the New York-based journalist could face six months in jail if she refused to testify, according to the Denver Post. Though Winter must still attend a hearing Wednesday, there will be no final decision on whether she will be legally obligated to testify until a later date.

Winter angered prosecutors last July when she reported for FoxNews.com that two law enforcement sources revealed to her Holmes had sent a University of Colorado at Denver psychiatrist a notebook "full of details about how he was going to kill people."

Prosecutors maintained that leaking such information was in violation of a court gag order limiting pretrial publicity.

In December, 14 law enforcement agents testified regarding the leak, and all denied speaking to the media about the notebook or knowing anyone who could have.

Lawyers for Holmes, who is accused of killing 12 and injuring 58 during a midnight showing of “The Dark Knight Rises” in Auroa, Colo., argued the notebook cannot be submitted as evidence because it is protected by doctor-patient privilege.

But if Holmes decides to use mental-health as a defense, the notebook will likely become significant evidence. In late March, Holmes defense team offered to plead guilty in exchange for a life sentence. Prosecutors, however, rejected that move as a publicity stunt, and are seeking the death penalty.

In a March affidavit obtained by NBC News, Winter said being forced to testify would ruin her career as a reporter and make it impossible to do her job as an investigative journalist. 

Her reputation in the field will be “irreparably tarnished,” she wrote.

"The documents and testimony Holmes seeks would violate my promises to my sources that I would keep their identities a secret. Futhermore, having to travel to Colorado to reveal my confidential sources for the article will cause me severe, irreparable hardship in a number of ways," Winter wrote to the court.

Along with her career, Winter said her life could be in danger if forced to appear in court.

She said she has been the subject of Internet threats from Holmes supporters, and even found a website containing personal photos of her family with “a scary degree of detail about our personal lives.”

“I cannot even begin to think about what might happen if I actually travel to Colorado at a time and place where these kinds of people will know where I am," Winter wrote.

Nevertheless, Winter will be in court on Wednesday.

Members of the media have come to Winter’s defense in voicing outrage over the prospects of making her testify. Colorado shield law does protect journalists from having to reveal sources, but there are circumstances under which reporters could be compelled to reveal their sources or face contempt of court charges.

"Courts have the right to enforce the confidentiality of investigations and that may in some cases require punishing leakers," National Press Club President Angela Greiling Keane said in a statement. "But attempting to get that information by subpoenaing reporters in order to learn their anonymous sources goes too far.”