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Journalists watch as reporter faces jail time for not revealing sources

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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.

When reporter Jana Winter wrote an exclusive story last July on the contents of a notebook that movie-theater massacre suspect James Holmes sent to his psychiatrist, she likely did not think it had the potential to ruin her career or send her to jail.

The day Winter broke the story, her work dominated the news cycle, frequently cited by Fox News reporters and commentators discussing the slaughter of 12 people during a midnight showing of “The Dark Knight Rises” in Aurora, Colo.

Citing two law enforcement sources, Winter reported that Holmes sent a package to the psychiatrist, at the University of Colorado at Denver, with drawings that outlined his plans. The spiral-bound notebook’s pages were filled with stick figures holding guns and shooting other stick figures.

But the report quickly drew the ire of Holmes’ defense team, which argued that leaking the information violated a gag order limiting pretrial publicity.  

That is why Winter will be back in Colorado on Wednesday. A judge is deciding whether she should be forced to testify, a move that her lawyers say could destroy her reputation as a reporter and have devastating effects throughout journalism. Refusing to reveal her sources could land her in jail up to six months.

The hearing was supposed to be when Judge Carlos A. Samour Jr. made his decision on whether Winter would testify. But Winter’s defense team won a minor victory earlier in the week, when Samour announced he would delay his ruling until he decides whether the notebook will be allowed as evidence in the first place.

“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

Dori Ann Hanswirth, a lawyer with the firm Hogan Lovells, which is representing Winter, warned there is still uncertainty over the final ruling.

If Holmes’ defense team decides to make his mental health an issue, the notebook will likely be significant evidence — as will how its contents became public.

Hanswirth said that Samour, appointed to take over the case April 1, has shown hints that he believes Winter may be protected under the First Amendment. Still, regardless of the final ruling, damage has already been done, the lawyer said.

“The chilling effect of this is quite palpable. It has been very hard on my client, and it is a big tax on her and her employer that would be devoted to gathering news,” Hanswirth said. “It’s chilling.”

In an affidavit in March, Winter said sources were already less willing to talk to her. Some fear that simply speaking to her will get them wrapped up in the legal battle, she wrote.

“I rely on the trust of my sources every single day,” Winter told the court. “If I am forced to reveal the identities of persons whom I promised to shield from public exposure, simply put, I will be unable to function effectively in my profession, and my career will be over.”

Hanswirth said her client has the added pressure of defending not only herself but her profession. 

“She needs to stand up for her journalistic ethics and principles for all (reporters),” Hanswirth said.

In what is known as a shield law, Colorado provides some protection for reporters against being forced to reveal sources, but it is not nearly as strong as in other states, like New York, where Winter is based.

It is rare for journalists to face jail time for not revealing sources, and those cases frequently deal with national security. What may have been the highest-profile involved former New York Times reporter Judith Miller, who served three months in prison for refusing to testify in a government inquiry of who leaked the name of CIA operative Valerie Plame.

Miller has become one of Winter’s most ardent defenders and wrote a column praising her work.

“Those who believe in the importance of a free and independent press must support her. In a democracy, Jana Winter should not have to go to jail to protect her sources and do her job,” Miller wrote.

Others in the media have spoken out against making Winter testify, including affidavits to the court Tuesday from the Colorado Broadcasters Association and the Reporters Committee for Freedom of the Press.

“The Court should be mindful of the ‘chilling effect’ subpoenas have on reporters,” wrote Bruce Brown, executive director of the committee.

He added: “Journalists often have difficulty convincing reluctant sources to come forward and speak freely and openly. ... The task is even more challenging, if not impossible, if the sources sense that reporters may be compelled to serve as witnesses against those whom they interview.”