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Journalist fights to keep secret sources on Colorado theater shooting

By Joseph Ax

NEW YORK (Reuters) - Lawyers for a Fox News reporter who is being asked to reveal her anonymous sources in a story about last summer's shooting at a Denver-area movie theater asked a New York appeals court on Wednesday to quash a subpoena requiring her to appear in Colorado court.

Jana Winter, a New York-based journalist, cited two unnamed law enforcement sources in reporting that the accused gunman, James Holmes, sent a notebook with details about his plans to commit mass murder to a psychiatrist before the 2012 attack that killed 12 people and wounded 58 others.

Holmes' lawyers said authorities leaked the information in violation of a judge's gag order in the case and want to force Winter onto the witness stand to reveal her sources. They also want prosecutors sanctioned for the leaks, which they said undermined their client's right to a fair trial.

The story in question appeared five days after Holmes is accused of opening fire inside a suburban Denver multiplex during a midnight screening of the Batman film "The Dark Knight Rises" last July.

Holmes, 25, who could face the death penalty if convicted, pleaded not guilty by reason of insanity earlier this month to first-degree murder and other charges.

At a hearing in April, a Colorado judge presiding over the case deferred ruling on whether to compel Winter to testify until and unless the notebook becomes evidence in the case, and ordered her to return to his courtroom in August.

At issue before a five-judge panel of the Appellate Division of the New York Supreme Court is whether a Manhattan judge erred when he signed off on an out-of-state subpoena requiring Winter to appear in a Colorado courtroom in the first place.

Winter's lawyer, Christopher Handman, argued on Wednesday that New York's robust shield law, which protects reporters from being forced to divulge confidential sources under any circumstances, demands that the subpoena be invalidated as a matter of public policy.

Otherwise, Handman said, out-of-state subpoenas could effectively sidestep New York's shield law whenever a New York journalist reports on news outside the state.

"New York, more than any other state in the nation, has a strong public policy that reporters can protect the identity of their sources," he said.

Daniel Arshack, a New York lawyer representing Holmes, countered that New York's shield law was irrelevant. The real question before the appellate judges, he said, is whether Colorado can require Winter to come to court. If she then refuses an order to testify, it would be up to the Holmes trial judge to decide how to proceed.

Under Colorado's shield law, a judge may force a reporter to reveal confidential sources if all other remedies are exhausted and if the interests of the party seeking information outweighs the First Amendment rights of the reporter and the public.

Regardless of the outcome of Wednesday's appeal, Dori Ann Hanswirth, another lawyer for Winter, said her client would not disclose her sources even if she is threatened with jail time.

"She is not going to reveal her sources," Hanswirth said.

(Reporting by Joseph Ax; Editing by Steve Gorman, Cynthia Johnston and Lisa Shumaker)

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