james holmes v. jana winter brief for petitioner-respondent
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To Be Argued By:
DANIELN. ARSHACK
Time Requested 15 Minutes
APL-2013-00239
New York County Clerks Case No. 30037/13
Court of AppealsSTATE OF NEW YORK
In the Matter of the Application of JAMES HOLMES,
Petitioner-Respondent,A Defendant in the State of Colorado for a Subpoena
Directing Jana Winter to Appear as a Witness, etc.,
against
JANA WINTER,
Respondent-Appellant.
BRIEF FOR PETITIONER-RESPONDENT
d
DANIELN. ARSHACK
ARSHACK, HAJEK& LEHRMAN, PLLC
1790 Broadway, Suite 710
New York, New York 10019
Telephone: (212) 582-6500
Facsimile: (212) 459-0568
RICHARD D. WILLSTATTER
GREEN & WILLSTATTER200 Mamaroneck Avenue, Suite 605
White Plains, New York 10601
Telephone: (914) 948-5656
Facsimile: (914) 948-8730
Attorneys for Petitioner-RespondentSeptember 30, 2013
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TABLE OF CONTENTS
TABLE OF AUTHORITIES................................................................................... ii
STATEMENT REGARDING THE STATUS OF RELATED
LITIGATION.................iv
PRELIMINARY STATEMENT............................................................................ 1
QUESTIONS PRESENTED.................................................................................... 8
ARGUMENT................................................................................................................. 9
I. UNDER CPL 640.10, THE APPLICATION OF JOURNALIST
SHIELD LAWS AND THEIR FOUNDATIONAL POLICIES ARE
IRRELEVANT TO THE SENDING COURTS DECISION TO ISSUEA SUBPOENA.............................................................................................................. 9
II. CIVIL RIGHTS LAW 79-h DOES NOT ESTABLISH ANY
SPECIAL CLASS OF CITIZENS WHO ARE IMMUNE FROM
BEING DIRECTED TO APPEAR IN OTHER STATES CRIMINAL
PROCEEDINGS PURSUANT TO CPL 640.10............................................ 15
III. THE TRIAL COURTS FINDING THAT WINTER FAILED TO
SHOW SHE WOULD SUFFER UNDUE HARDSHIP WITHIN THEMEANING OF CPL 640.10 WAS CORRECT AND WELL WITHIN
THE DISCRETION OF THE SUPREME COURT AS
CONSIDERATIONS OF PRIVILEGE ARE IRRELEVANT TO THAT
DETERMINATION AND WINTERS REPEATED APPEARANCES
IN COLORADO HAVE NOT CAUSED HER ANY HARDSHIP.......... 27
A.Reporters Who Testify Do Not Experience Hardship No MatterHow it is Defined............................................................................... 32
CONCLUSION........................................................................................................... 39
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TABLE OF AUTHORITIES
Cases
Beach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476 N.Y.S.2d 765(1984) ........................................................................................................ 19
Branzburg v. Hayes, 408 U.S. 665, 708, 92 S. Ct. 2646, 2670 (1972) .......... 9
Chambers v Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L.Ed.2d
297 (1973) ................................................................................................. 21
Conn. Mut. L. Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 S. Ct. 119,
28 L. Ed. 708 (1884). ................................................................................ 20
Debra H. v Janice R., 14 N.Y.3d 576 (2010) ............................................... 24
Ehrlich-Bober & Co. v University of Houston, 49 N.Y.2d 574, 404
N.E.2d 726, 427 N.Y.S.2d 604 (1980) ...................................................... 25In re Application of Codey, 183 A.D.2d 126 (1
stDept. 1992)................ 13, 28
In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 370
U.S.App. D.C. 4 (D.C. Cir. 2006) ............................................................. 36
In re Pitman, 201 N.Y.S.2d 1000 (N.Y. Gen. Sess. 1960) ........................... 17
Matter of Codey v. Capital Cities, American Broadcasting Corp., Inc.,82 N.Y.2d 521, 605 N.Y.S.2d 661(1993) .......................................... passim
Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400,
409 N.E.2d 876 (1980) .............................................................................. 11
Matter of Holmes v Winter, 970 N.Y.S.2d 766, 2013 N.Y. App. Div.
LEXIS 5585 (1st Dept. Aug. 20, 2013) ................................................... 31McKevitt v. Pallasch, 339 F.3d 530 (7
thCir. 2003) ...................................... 38
People v. Hawkins, 157 N.Y. 1 (1899) ......................................................... 16
People v. Marcy, 91 Mich. App. 399 (Mich. Ct. App. 1979) ....................... 28
People v. McCartney, 38 N.Y.2d 618 (1976) ......................................... 10, 23
People v. the State of N.Y v. ONeill, 359 U.S. 1, 5, 79 S. Ct. 564, 569
(1959) ................................................................................................. passim
Rodriguez v. United States, 480 U.S. 522 (1987) ......................................... 18
Tracy v. Superior Court, 168 Ariz. 23, 810 P.2d 1030 (Ariz. 1991) ..... 17, 18
Washington v Texas,388 U.S. 14 (1967) ..................................................... 21
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Statutes
CPL 60.15 ...................................................................................................... 9
CPL 640.10 ........................................................................................... passim
N.Y. Civ. Rights Law 12 ............................................................................. 9
N.Y. Civ. Rights Law 79-h ................................................................. passim
Constitutional Provisions
Colo. Const. Art. 2 16 .................................................................................. 9
Colo. Const. Art. 2 25 .................................................................................. 9
U.S. Const. Amend. VI ................................................................................... 9
U.S. Const. Amend. XIV ................................................................................ 9
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STATEMENT REGARDING THE STATUS OF RELATED
LITIGATION
At the time this brief was filed, Appellant Jana Winters motion to quash
and for a protective order in the Colorado District Court remained pending.1
The soonest that court will likely rule on the motion will be January 3, 2014.
Colorado Judge Samour, who will be resolving that motion, has already
ruled that that Ms. Winters testimony is highly relevant to his inquiry
because the contents of the notebook and the manner in which it was
obtained may well prove to be a critical piece of evidencein this case.
[...] Of course, the more significant any admissible contents of the
notebookare, the more significant the credibility of one or more of the
[detectives whodenied releasing the notebook] is likely to be at
trial."(emphasis added)2The Colorado court has already established in
this death penalty case that the credibility of a corrupt law enforcement
officer who leaked this crucial evidence to the press is central to the
1http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_
Courts/12CR1522/002/2013-03-
28%20Motion%20for%20Protective%20Order%20and%20to%20Quash%20Subpoena%
20Duces%20Tecum%20and%20Ad%20Testificandum.pdf
2See Order Regarding Jana Winter s Second Ripeness Contention Raised in Support
of HerMotion to Quash Subpoena and for Protective Order (C-26(a)), signed on April
8, 2013,People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cntyfiled July 20,2012), available at
http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_
Courts/12CR1522/004/C-53%2009%2003%2013.pdf
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defense. The resolution of Winters pending motion, in Colorado, to
quash her subpoena will therefore resolve her claim of privilege in
Colorado.
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PRELIMINARY STATEMENT
This is a simple case. The trial court and the Appellate Division
correctly followed the law of the State of New York, Criminal Procedure
Law 640.10, by issuing a subpoena to a New York citizen, Jana Winter, to
appear as witness in a Colorado criminal case.
In her brief at page 9, Winter explains her view of what this case is
about by stating, In the wake of Holmes depravity, many were left asking
why? This case is about Jana Winters attempts to answer that question.
Rather than engage in the exploration that Winter invites, this Court
should, instead answer the much narrower question of whether a citizen of
New York, even a citizen journalist of New York, is, like the rest of us,
obligated to appear in a sister state pursuant to CPL 640.10 which codifies
the Uniform Act to Secure the Attendance of Witnesses from Without the
State in Criminal Cases. That statute expresses an important public policy: to
require New Yorkers to appear in sister states criminal proceedings when
their expected testimony is both material and necessary with the
understanding that other states will provide reciprocal assistance in a New
York prosecution.
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The context of this case, however, should not be forgotten. Shortly
after the arrest of Mr. Holmes in Colorado, law enforcement learned that Mr.
Holmes had mailed a personal notebook to the office of his psychiatrist at the
University of Colorado where he had previously attended school. Those
writings were recovered from the Universitys mail center by Colorado law
enforcement officers. While the Colorado Court had previously issued a gag
order covering the entire case, the Court immediately issued an additional
gag order relating specifically to the writings. Both gag orders covered the
conduct of every law enforcement officer involved in the investigation. R.
44, R. 712.
Obviously, the legal issues associated with Mr. Holmes
communication with his psychiatrist needed to be addressed and the
inflammatory nature of the evidence had to be controlled. After the gag order
was issued by the Court, two Colorado law enforcement officers gave
Winter, who was at the time present in Colorado working on the Holmes
story, their descriptions of the contents of those writings. By doing so, those
unnamed law enforcement officers illegally and corruptly attempted to
influence both the process and result in a very high profile potential death
penalty case. The Colorado District Court, understandably concerned that its
order had been violated and worried that the fundamental fairness of a
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potential death penalty case had been compromised, held a hearing to
determine which of the law enforcement officers who had access to the
writings had violated his order. The twenty officers who had access to the
writings testified that they had not violated the order, but at least two of them
appear to have committed perjury by so testifying. R. 111. Thereafter,
because Jana Winter was the one person who obviously knew which of them
had violated that order, the Colorado District Court issued a certificate of
materiality and necessity pursuant to the Uniform Act to Secure the
Attendance of Witnesses from Without the State which Colorado, like every
other state, has adopted.
So, it cannot fairly be suggested, even though it is not relevant to the
ultimate resolution of the issues presented by this case, that Winter of Fox
News was engaged in providing needed information to the public. This is not
a whistle blowing case in which some aspect of government malfeasance is
revealed to a thankful public. Instead, Winter and her sources served the
united and focused illegitimate purpose of undermining the fundamental
fairness of what is now a death penalty prosecution. Those corrupt law
enforcement officers may be called to testify about substantive and central
issues in the Holmes trial. If, in addition to being corrupt, they also
committed perjury when called to testify in the fact finding hearing in
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Colorado, their credibility is obviously deeply compromised and the
defendants right to a fair trial could be severely undermined. The defendant,
the People of the State of Colorado, and the victims and their families all
deserve to have a full and fair trial, once and for all. As noted in the Amicus
Brief at page 11 and by Judge Samour, the trial judge hearing the James
Holmes case in Colorado stated3, the contents of the Holmes notebook
may well prove to be a critical piece of evidence in this case. [...] Of
course, the more significant any admissible contents of the notebookare,
the more significant the credibility of one or more of the [detectives who
denied releasing the notebook] is likely to be at trial." Id. Therefore, in
this death penalty case, the credibility of a corrupt law enforcement
officer who leaked this crucial evidence to the press is central to the
defense.This is the context of this case.
We are able to report that by the time this appeal is heard, Fox News
Reporter Winter will have already done precisely what the subpoena
required by appearingthreetimes in the Colorado Court, subject to the
subpoena which the New York Supreme Court issued, without any apparent
3See Order Regarding Jana Winter s Second Ripeness Contention Raised in Support of
HerMotion to Quash Subpoena and for Protective Order (C-26(a)), signed on April 8,
2013,People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cntyfiled July 20,2012), available at
http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_
Courts/12CR1522/004/C-53%2009%2003%2013.pdf
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ill effect. Winters overwrought proclamation of doom which she contends
in her brief will attend her appearance in Colorado is nothing more than
predictable fact spinning based only on speculation. Moreover, she has
already subjected herself to the jurisdiction of the Colorado Court and has
filed a motion on March 28, 2013 seeking the exact same relief from the
Colorado Court that she is seeking in this appeal. Winter made her choice
and she should not now be seeking relief from this Court when she has
already asked the Colorado Court to resolve these very issues.
In fact, Winters gloomy suggestion that her career will be derailed by
complying with the subpoena is more baseless speculation based, again, on
nothing but air. As will be discussed below, the opposite is far more likely.
Many journalists who have complied with their legal duty to appear as
witnesses subject to subpoenas have gone on to have spectacular careers
some at Fox News!
As a Fox News reporter in New York, we might have expected that
Winters brief would, as it does, describe the New York Journalist Shield
protections hyperbolically as robust, absolute, muscular, strong and
sacrosanct. But whatever colorful adjective she chooses to describe the
protections that the State Legislature has elected to provide to journalists
working in New York, in Civil Rights Law 79-h, she does not possess and
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cannot describe any immunity from subpoenas derived from the Civil Rights
law or any other state law applicable to journalists, or to any other person,
who are required to appear as a witness in another state pursuant to CPL
640.10.
Our legislature was free to -- and remains free -- to establish a special
class of subpoena-immune citizens who could be relieved of any duty to
comply with a subpoena from another state. To date, they have chosen not to
exempt journalists or anyonefrom such subpoenas. Indeed, if the Court in
New York was to unilaterally decide that one class of citizens is immune
from being subpoenaed to another state, we could expect that other states
could likewise define safe no-subpoena-zones for various types of citizens
that they particularly cherish: oilmen in Texas, movie stars in California,
gamblers in Nevada, socialists in Vermont the list could go on.
Winter would have this court establish, for the first time, that
journalists based in New York, unlike any other citizen, are not subject to
appearing in courts of sister states pursuant to the Uniform Act to Secure the
Attendance of Witnesses from Without the State in Criminal Cases, a law
which has been adopted by every single state, the District of Colombia, the
U.S. Virgin Islands, the Commonwealth of Puerto Rico and the Navajo
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Nation. Such remarkably special treatment has been declined by our
legislature and should therefore be declined by this Court.
In light of the fact that Winter was in Colorado(See Appellants brief
page 42 43) at the time that she obtained the material which is the subject
of the subpoena and about which she reported from Colorado, it is startling
for her to now suggest that despite the fact that she engaged in her conduct
in Colorado, she nonetheless believes that she can thereafter retreat to New
York and thenclaim absolute immunity from compulsory process (although
even New Yorks journalist shield statute does not afford that protection).
Winter has used her retreat as an opportunity to seek from this court what
she has alreadysought from the Colorado Court. As will be discussed
below, on March 28, 2013, Winter appeared through counsel in Colorado
and filed papers seeking the same relief from Colorado that she is seeking
here.
This case is not complicated. It does not require new ground to be
tilled. But it is very important. The public policy of New York, as expressed
by the Legislatures enactment of CPL 640.10, is to comply with proper
requests from sister states for subpoenas in criminal proceedings. Yet Winter
believes that journalists should be elevated above all other citizens by being
absolved from the duty to appear to give testimony. It is a view which stands
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on its head the values on which our system is founded. In a nutshell she is
saying, Dont make me go to Colorado to give testimony because I am
afraid it might hurt my career. Her view was summarized expertly and
succinctly by her able counsel at the Appellate Division oral argument. He
was asked, Are you telling us that here in New York, we value the
Journalist Shield more than we do the fundamental right to a fair trial?
Without hesitation, he answered, Yes.
QUESTIONS PRESENTED
1) DID THE APPELLATE DIVISION ERR IN APPLYING THE CLEARAND UNEQUIVOCAL HOLDING INMATTER OF CODEY V. CAPITAL
CITIES AMERICAN BROADCASTING CORP, 82 N.Y. 2d 521 (1993)
THAT THE APPLICATION OF JOURNALIST SHIELD LAWS AND
THEIR FOUNDATIONAL POLICIES ARE IRRELEVANT TO THE
SENDING COURTS DECISION TO ISSUE A SUBPOENA UNDER CPL640.10, THE UNIFORM ACT TO SECURE THE ATTENDANCE OF
WITNESSES FROM WITHOUT THE STATE IN CRIMINAL CASES ?
2) DOES CIVIL RIGHTS LAW 79-h ESTABLISH A SPECIAL CLASS OFCITIZENS WHO ARE NOT SUBJECT TO BEING DIRECTED TO
APPEAR IN OTHER STATES CRIMINAL PROCEEDINGS PURSUANT
TO CPL 640.10?
3) IN LIGHT OF THE FACT THAT WINTER IS ALREADY LITIGATINGHER PRIVILIGE CLAIM IN COLORADO, DO HER HYPERBOLIC
CLAIMS THAT HER CAREER WILL BE DESTROYED IF SHE MUST
LITIGATE HER CLAIMS OF PRIVILEGE IN THE DEMANDING
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STATE CONSTITUTE UNDUE HARDSHIP WITHIN THE MEANING
OF CPL 640.10(2)?
ARGUMENT
I. UNDER CPL 640.10, THE APPLICATION OF JOURNALISTSHIELD LAWS AND THEIR FOUNDATIONAL POLICIES ARE
IRRELEVANT TO THE SENDING COURTS DECISION TO ISSUE
A SUBPOENA.
Citizens may not hide behind alleged constitutional protections in
order to eschew their obligation to give testimony in criminal matters. See
New York v. ONeill, 359 U.S. 1, 5, 79 S. Ct. 564, 569 (1959)(ones
obligation to give testimony in a case trumps ones constitutional right to
freedom of travel between states);see also Branzburg v. Hayes, 408 U.S.
665, 708, 92 S. Ct. 2646, 2670 (1972)(neither the constitutional right to
freedom of the press nor any other constitutional provision protects a
reporter from being compelled to testify in a proceeding regarding
information received in confidence related to criminal activity).
Additionally, a criminally accused holds a constitutional right to produce
witnesses, by compulsory process through the authority of the state or
federal government if necessary. U.S. Const. Amends. VI, XIV; Colo.
Const. Art. 2 16, 25. In this State, Civil Rights Law 12 provides a
statutory right to compulsory process while Criminal Procedure Law 60.15
gives a criminal defendant the right to call witnesses and examine witnesses.
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The purpose of the Uniform Act to Secure the Attendance of
Witnesses From Without a State in Criminal Cases (the Uniform Act) is to
allow a party in a criminal proceeding to obtain the physical presence of a
witness or evidence located in another state.Matter of Codey v. Capital
Cities, American Broadcasting Corp., Inc., 82 N.Y.2d 521, 526, 605
N.Y.S.2d 661, 665 (1993). A state has immediate personal jurisdiction over
[a person] by virtue of his presence within that State. ONeill, 359 U.S. at
8-9, 79 S. Ct. at 570. The witness physical presence in the sending state
confers upon it the constitutional jurisdiction to order that witness to testify
in the receiving state. The Uniform Act promotes comity among the states
within the federal union and prevents a witness from shirking his duty to
testify in criminal proceedings by removing himself to a different
jurisdiction. Codey, 82 N.Y.2d at 526.
Indeed, Subdivision 5 of the Uniform Act, codified in New York in
CPL 640.10, provides: This section shall be so interpreted and construed as
to effectuate its general purpose to make uniform the law of the states which
enact it.People v. McCartney, 38 N.Y.2d 618, 621, n.3 (1976).
Winters central argument is that the trial court and the Appellate
Division erred by not considering New Yorks Journalist Shield Law in the
decision to issue the out of state subpoena. She is simply wrong. This is far
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from a novel argument, the issue having been firmly decided, on facts very
similar to the instant ones, by this Court in Codey, supra. Winters central
argument therefore presents no questions the fundamental underlying
principles of which have not already been declared by the Court of
Appeals.Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 715, 431
N.Y.S.2d 400, 409 N.E.2d 876 (1980). For this reason alone, the Appellate
Division First Departments holding should be simply affirmed.
Indeed, the Court put the issue to rest in Codey:
We conclude that the Appellate Division's decision to consider
the privileged nature of the evidence sought in the New Jersey
proceeding was error.
[]
It would be inefficient and inconsistent with the over-all
purpose and design of this reciprocal statutory scheme to permit
the sending State's courts to resolve questions of privilege on a
CPL 640.10 (2)application. The purpose of the Uniform Act
was to establish a simple and consistent method for compelling
the attendance of out-of-State witnesses (see generally,
[Bellacosa, Practice Commentary, McKinney's Cons Laws of
NY, Book 11A, CPL 640.10,] at 306). This goal would be
frustrated if the CPL 640.10 (2)hearings conducted by the
sending State were to become forums for the litigation of
questions of admissibility and evidentiary privilege, most of
which will inevitably have to be litigated again anyway during
the course of the demanding State's criminal proceeding.
Further, evidentiary questions such as privilege are bestresolved in the State--and in the proceedingin which the
evidence is to be used.
[]
In view of the sensitivity of privilege issues to local policy
concerns and particularized legal rules, it would make little
sense to construe CPL 640.10 (2)as authorizing the courts of
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confidential sources.Id.at 524. Those confidential materials included notes
of interviews and outtakes of video interviews conducted by ABC World
News Tonight correspondent Armen Keteyianof NC State basketball player
Kelsey Weems. See In re Application of Codey, 183 A.D.2d 126, 128(1st
Dept. 1992). At the time the material was broadcast, by prior agreement, the
identity of the source had been obscured. When material is obtained or
received in confidence, said material is considered confidential within the
meaning of Civil Rights Law 79-h(b).4That subsection provides for
absolute protection for a journalist from being required to testify
concerning confidential material in New York. The material sought by the
4 Section 79-h(b) provides: (b) Exemption of professional journalists and newscasters
from contempt: Absolute protection for confidential news. Notwithstanding theprovisions of any general or specific law to the contrary, no professional journalist or
newscaster presently or having previously been employed or otherwise associated with
any newspaper, magazine, news agency, press association, wire service, radio ortelevision transmission station or network or other professional medium of
communicating news or information to the public shall be adjudged in contempt by any
court in connection with any civil or criminal proceeding, or by the legislature or other
body having contempt powers, nor shall a grand jury seek to have a journalist ornewscaster held in contempt by any court, legislature or other body having contempt
powers for refusing or failing to disclose any news obtained or received in confidence or
the identity of the source of any such news coming into such person's possession in thecourse of gathering or obtaining news for publication or to be published in a newspaper,
magazine, or for broadcast by a radio or television transmission station or network or for
public dissemination by any other professional medium or agency which has as one of itsmain functions the dissemination of news to the public, by which such person is
professionally employed or otherwise associated in a news gathering capacity
notwithstanding that the material or identity of a source of such material or related
material gathered by a person described above performing a function described above isor is not highly relevant to a particular inquiry of government and notwithstanding that
the information was not solicited by the journalist or newscaster prior to disclosure to
such person.
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State of New Jersey had notbeen disclosed on the broadcast and had been
received in confidence by Mr. Keteyeian and so it was still confidential at
the time it was sought by New Jersey. Importantly, as Winter well knows,
the Civil Rights Law provides that the privilege may onlybe waived by the
professional journalist or newscaster who is entitled to claim it under Civil
Rights Law 79-h [g].5Theprivilege belongs to the journalist who received
the information so it may only be waived by her. It cannot be waived by the
confidential source.
Knowing these facts, Winter persists in vainly trying to distinguish the
facts of Codey from those in the instant case by stating ipsi dixitthat the
material sought in Codeywas not confidential material. SeeAppellants Br.
21. Winter should know this is just not true. And ABC also knew it wasnt
true. That is, of course, why they opposed releasing the material on grounds
it was confidential.
Further, in Codey, as is the case here, the New Jersey Shield law
differed from the New York Shield Law as it did not provide for absolute
protection of confidential sources. Codey,82 N.Y.2d at 530.
5Section 79-h(g) provides: (g) Notwithstanding the provisions of this section, a person
entitled to claim the exemption provided under subdivision (b) or (c) of this sectionwaives such exemption if such person voluntarily discloses or consents to disclosure of
the specific information sought to be disclosed to any person not otherwise entitled to
claim the exemptions provided by this section.
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Despite the complete overlap of the seminal facts, Winter would have
this court blink at thisstare decisis and instead resolve this matter pursuant
to footnote 3 in Codeywhich held open the theoretical possibility that, on
facts different than those presented byCodeyand this case, the possibility
that in some future case a strong public policy could justify the refusal of
relief under the Uniform Act. There is no hint what the facts of that future
case might be. Yet, the facts of Codeyand of this case do not constitute that
future case. The Codey decision and its factual underpinnings repudiate
any argument that this case falls within footnote 3.
II. CIVIL RIGHTS LAW 79-h DOES NOT ESTABLISH ANYSPECIAL CLASS OF CITIZENS WHO ARE IMMUNE FROM
BEING DIRECTED TO APPEAR IN OTHER STATES CRIMINAL
PROCEEDINGS PURSUANT TO CPL 640.10.
Winter contends that some unarticulated public policy buried
seamlessly and without mention in the interstitial space of the language of
Civil Rights Law 79-h eliminates the obligation of reporters to respond to
the clear mandates of another statute, CPL 640.10. There is, of course, no
such public policy and her efforts to conjure one are doomed to failure. The
public policy of New York is not unearthed by alchemy. It is created
organically and purposefully by the Legislature. For more than a century this
Court has been clear and unambiguous in expressing what public policy is in
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the juridical sense. InPeople v. Hawkins, 157 N.Y. 1 (1899), the Court held
that:
The term public policy is frequently used in a very vague,
loose or inaccurate sense. The courts have often found it
necessary to define its juridical meaning, and have held that a
state can have no public policy except what is to be found in its
Constitution and laws. Therefore, when we speak of the public
policy of the state, we mean the law of the state, whether found
in the Constitution, the statutes or judicial records, so that the
inquiry is whether the provision of the Constitution above cited
forbids the sale of prison-made goods to the general public.
Either it does or does not. If it does not, there is an end of the
argument on that point. If it does, we will see hereafter how itaffects the validity of this statute.
Id.at 12 (citations omitted).
By applying theHawkinsrubric, it easily seen that despite Winters
heartfelt wishes, neither the Constitution nor any legislative product includes
any provision which would treat reporters differently from lawyers, judges
or politicians were they subpoenaed to appear in a sister states criminal
case.
A person so subpoenaed might well be in a position to respond to it by
expressing what she reasonably believes to be a privilege to refuse to answer
questions in the sister states jurisdiction. Yet the subpoenas recipient will
still be compelled to appear in that sister jurisdiction and at that time raise
their issue of privilege. Indeed, even a person seized of a Federal
Constitutional right (arguably more protected and without any statutory
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exception) such as a Fifth Amendment right to refuse to answer questions
will nonetheless be compelled to appear in a sister states jurisdiction to
invoke that constitutional right if they are subpoenaed pursuant to CPL
640.10. The privilege is a matter to be ruled on by the court conducting the
trial.In re Pitman, 201 N.Y.S.2d 1000, 1002 (N.Y. Gen. Sess. 1960) (where
New York witness was compelled to appear in New Jersey criminal
prosecution, questions about his privilege against self-incrimination would
have to be determined in the New Jersey court, not in the New York court
issuing the order). Tracy v. Superior Court, 168 Ariz. 23, 810 P.2d 1030
(Ariz. 1991).
Hawkins explains that we are to credit the forethought and attention to
consequences of the drafters of the Constitution and by extension legislation
promulgated pursuant to that Constitution. The drafters had the ability to
say what they mean:
If the framers of the Constitution intended to forbid the sale of
prison-made goods to the general public, or to prohibit dealing
in them, it was an easy matter to say so in terms that could not
be misunderstood. Surely, the poverty of our language is not
such as to preclude the framers of the fundamental law from
giving plain and direct expression to such a simple thought.
Id. at 12-13.
Accordingly, the plain and direct expression of law contained in
CPL 640.10 should dispel any notion that there exists some unstated,
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unwritten yet deeply held belief that reporters should be exempted from the
reach of the statute.
Indeed, there can be no public policy except what is to be found in
[the] Constitution and laws.Id. at 12. Anyone reading Civil Rights Law
79- h and CPL 640.10 will observe that there is no carve out for journalists
who are subpoenaed to appear in other jurisdictions. The language is clear
and unambiguous. Likewise, our Constitution is silent on the matter.
Presumably the legislature could have done so, but they have not and Winter
knows that wishing does not make it so. Our legislature made choices in
establishing the New York Journalist Shield Law for journalists practicing
their craft in New York. The myriad legislative choices which resulted in
Civil Rights Law 79-h are entitled to respect and deference. Neither Winter
nor the Courts are free to read intent, meaning, reach, or breadth which were
not clearly articulated by the legislature. Deciding what competing values
will or will not be sacrificed to the achievement of a particular objective is
the very essence of legislative choice[.]Rodriguez v. United States, 480
U.S. 522, 525-26 (1987).
The public policy of New York as articulated in Civil Rights Law
79- h is that noNew Yorkcourt can compel a reporter to testify about
confidential sources when subpoenaed to give evidence in aNew Yorkcourt.
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The Legislature did not purport to forbid our courts from compelling
reporters to respond to subpoenas from other states. That is what this Court
inBeach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476 N.Y.S.2d 765
(1984) clearly held. InBeach, a New York Grand Jury issued a subpoena to
a New York reporter related to activity engaged in by that reporter in New
York. Both the dissent belowin this case and Winter in her brief
conveniently disregard the fact that the application of the New York Civil
Rights Law 79-h is limited to the activity of reporters carrying out their
activities in New York.Beachinstructs that:
New York first adopted a Shield Law 14 years ago (L 1970, ch
615). In approving the legislation, Governor Rockefeller stated:
The bill protects journalists and newscasters from charges of
contempt in anyproceeding brought under State lawfor
refusing or failing to disclose information or sources of
information obtained in the course of gathering news for
publication.
Id.at 249 (emphasis added).
And further, in Judge Wachtlers concurrence inBeach, he explained that
the New York journalist shield law provides protection to reporters within
New York state from [s]tateinvestigators or investigative bodies,
irrespective of any privileges granted by the Legislature now or in the
future.Id. at 256 (emphasis added).
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which govern their behavior where they practicenot just where they live or
have offices.
Nowhere in Winters argument is there an acknowledgement of the
importance and centrality of CPL 640.10. Yet, without it, no state would be
able to carry on its criminal trials. The fundamental Constitutional right of
defendants given to them by the Sixth Amendment of the United States
Constitution and held applicable to the States through the due process clause
of the Fourteenth Amendment, See Washington v Texas,388 U.S. 14, 17-19
(1967), would be rendered meaningless; the right to compel the attendance
of witnesses at criminal trials would crumble and witnesses would soon
learn that they can simply hide out in states which do not apply the clear
requirements of the Uniform Act to Secure the Attendance of Witnesses
From Without a State in Criminal Cases. No state procedural rule and
certainly no abstract unarticulated claim of public policy may operate to
deprive a defendant of his constitutional right to due process. SeeChambers
v Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
The Supreme Court has explained the ameliorative purpose of this
essential interstate compact.InNew York v. O'Neill, 359 U.S. 1 (1959) the
Court instructed that:
The primary purpose of this Act [Uniform Law to Secure the
Attendance of Witnesses from Within or Without a State in
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Criminal Proceedings.] is not eleemosynary. It serves a self-
protective function for each of the enacting States.
Id. at 9.
Without the Uniform Act, no state could count on being able to
compel material and necessary witnesses to appear for criminal cases. As
much as Winter protests that journalism is a nationwide occupation, the
same may be said of the reach of criminal trials. Criminal trials are
frequently not local affairs. With the ease of travel and the means of cross
state communication, it is common to require the presence of out of state
witnesses in criminal trials. Today every state, Puerto Rico, the Virgin
Islands and The Navajo Nation have implemented the Uniform Act. As the
Supreme Court said, This is not a merely altruistic, disinterested
enactment.Id. Winter argues that comity should take a back seat to her
personal claim of hardship. The Supreme Court explained the importance of
the uniform application of the Uniform Act:
To yield to this argument would foreclose to the States virtually
all arrangements which increase comity among the States.
These extra-constitutional arrangements are designed to solve
"problems created by a constitutional division of powers
without disturbance of the federal nature of our government."Clark, Joint Activity Between Federal and State Officials, 51
Pol. Sci. Q. 230, 269.
[]
By reciprocal, voluntary legislation the States have invented
methods to accomplish fruitful and unprohibited ends. A citizen
cannot shirk his duty, no matter how inconvenienced thereby, to
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testify in criminal proceedings and grand jury investigations in
a State where he is found. There is no constitutional provision
granting him relief from this obligation to testify even though
he must travel to another State to do so. Comity among States,
an end particularly to be cherished when the object is
enforcement of internal criminal laws, is not to be defeated by
an a priori restrictive view of state power.
Id.at 9-11.
CPL 640.10 serves the overarching stated interests of this state and
every state. The public policy of New York, as expressed in that law, is to
promote the reciprocal enforcement of criminal law across the United States.
Carving out the exception sought by Winter will neither serve the interests
of the signatory states (including this one) nor the Constitutional interests
which CPL 640.10 serves to preserve. InPeople v. McCartney, 38 N.Y.2d
618 (1976), this Court had the opportunity to address the construction and
application of CPL 640.10 (subd 3). The Court held that, The Uniform
Act is a reciprocal act and is operative only among States which have
adopted it. Section 5 of the act (CPL 640.10, subd 5) emphasizes that, as a
uniform act, it should be applieduniformlyin the jurisdictions in which it
has been adopted.Id.at 621 (emphasis added). Indeed, the Uniform Act
explicitly provides that it shall be so interpreted and construed as to
effectuate its general purpose to make uniform the law of the states which
enact it." CPL 640.10 (subd 5).
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Winter would have this Court carve out an exception for reporters. To
create such an exception would violate the expresspublic policy of the
Uniform Act by contradicting its stated purpose. She suggests that it is more
beneficent and more consistent to graft an undeclared public policy onto the
clear language of CPL 640.10 than it is to recognize the value of comity
between the states. InDebra H. v Janice R., 14 N.Y.3d 576 (2010), this
Court explained that, the doctrine of comity does not of its own force
compel a particular course of action. Rather, it is an expression of one State's
entirely voluntary decision to defer to the policy of another. Such a decision
may be perceived as promoting uniformity of decision, as encouraging
harmony among participants in a system of co-operative federalism, or as
merely an expression of hope for reciprocal advantage in some future case in
which the interests of the forum are more critical.Id. at 600.
None of the cases Winter relied upon to argue that New York public
policy should trump comity are relevant to the current matter. None of those
cases involve a legislative mandate to afford comity to a sister state like that
embodied in CPL 640.10. And none of those cases address the type of
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significant sister-state interest of enforcing state and federal constitutional
rights guaranteed to defendants in criminal cases.6
Rather, the question inEhrlich-Bober & Co. v University of Houston,
49 N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604 (1980), Winters central
supporting case, was whether a Texas statute limiting venue in suits against
its own University for mere administrative convenience should give way
where the wholly commercial transaction at issue was centered in New
York. This is in direct contrast to the facts here as Winters conduct was
centered in Colorado by her own admissions.
Significantly, while theEhrlich-Bober Court rejected the Texas
statute in favor of allowing the civil suit to proceed in the New York Courts,
it noted that it may be appropriate, as in this case, to defer to the assertion
of interest by another jurisdiction where the interest in question goes to the
very heart of the governmental function. 49 N.Y.2d at 581(emphasis
added). Here, the New York Legislature codified the doctrine of comity
within CPL 640.10 requiring New York Courts to issue subpoenas where
the parties in the requesting state have met the elements listed in the statute.
6Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124, 130 (1st Dept2006) cited by Winter, also involves a factual scenario far afield from Mr. Holmes out ofstate subpoena request. Central to theBanco Nacional decision was that the agreement in
question contained an explicit choice of law clauseselecting New York exclusively.
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Moreover, the interest at stake in the requesting state is indeed central to the
governments state and federal constitutional mandate to guarantee a
criminal defendants right to compulsory process.7
When a party to an agreement unilaterally decides to change the
terms, the entire agreement collapses. Every state in the Union is a party to
the Uniform Act and all have a compelling interest in its viability. There are
no carve outs for unhappy journalists in CPL 640.10 and there is no
provision in Civil Rights Law 79-h exempting journalists from complying
with CPL 640.10.
Winter should return to Colorado where she was when she collected
the information which she published, where she will be subject to the laws
of the State of Colorado and whereshe has already asserted such privileges
as she may have there.8 Winter has, herself, already sought and received
the jurisdiction of the Colorado Court to resolve her concerns. Her pending
7Winters reliance on Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308A.D.2d 261, 270 (1st Dept 2003) is similarly misplaced.Curtisinvolved an arbitration
agreement between two New York parties regarding a relationship centered in New York,
a situation far afield from the facts before this Court now. Since Winters activity tookplace in and was centered in Colorado, Curtiswould support this issue being resolved in
Colorado.8Winters Statement Regarding The Status of Related Litigation attached to her briefin this matter refers the court to the Colorado Judges Order relating to her Motion to
Quash filed in Colorado. Winters brief filed in Colorado requesting the same remedy
she seeks here can be found at:
http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_Courts/12CR1522/002/2013-03-
28%20Motion%20for%20Protective%20Order%20and%20to%20Quash%20Subpoen
a%20Duces%20Tecum%20and%20Ad%20Testificandum.pdf
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motion in Colorado, filed on March 28, 2013, asks the Colorado Court to
resolve her Journalist Shield issues. And, as Codeyholds, that is precisely
the right place to resolve those issues.
III. THE TRIAL COURTS FINDING THAT WINTER FAILED TOSHOW SHE WOULD SUFFER UNDUE HARDSHIP WITHIN THE
MEANING OF CPL 640.10 WAS CORRECT AND WELL WITHIN
THE DISCRETION OF THE SUPREME COURT AS
CONSIDERATIONS OF PRIVILEGE ARE IRRELEVANT TO THAT
DETERMINATION AND WINTERS REPEATED APPEARANCES
IN COLORADO HAVE NOT CAUSED HER ANY HARDSHIP.
CPL 640.10, subd. 2 says, in pertinent part, that if a judge
determines that the witness is material and necessary, that it will not cause
undue hardship to the witness to be compelled to attend and testify in the
demanding state, then he shall issue a subpoena. CPL 640.10(2)). In Codey,
this Court held that privileged status of evidence is not a proper factor for
consideration under CPL 640.10(2).. 82 N.Y.2d at 524. Winters claim of
privileged status does not provide her a basis for a claim of undue hardship.
By the time this appeal is heard, Winter will have appeared in
Colorado three times in compliance with the subpoena issued by Judge Larry
Stephen in New York County Supreme Court. Winter insisted, and the
Public Defender of Colorado agreed, consistent with the orders of that court
to pay for her travel, hotel and incidentals for her first two trips. Winter has
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not claimed any hardship based on her travel to and from Colorado and she
has likewise not claimed any damage in her work life or to her career as a
consequence of that travel.
Winter describes in her affidavit a litany of imagined potential ills
which may befall her if she goes to Colorado. R. 335. Yet, she has gone
three times and survived each trip unscathed. Indeed, she attempts to
analogize herself to the polygrapher in Michigan discussed in a minimally
applicable case,People v. Marcy, 91 Mich. App. 399 (Mich. Ct. App. 1979).
InMarcythe court did not reject the out of state subpoena of the polygrapher
based on hardship as Winter wrongly implies. In fact, the Michigan Court
determined that the witness was not a material and necessary witness. 91
Mich. App. at 407. The Court of Appeals in Michigan upheld the lower
courts decision in large part because, unlike Winter, the witnesss testimony
was protected by attorney-client privilege in both the requesting andthe
sending states.Id.Furthermore, the analysis set forth inMarcywas cited by
the Appellate Division of the Supreme Court inApplication of Codey, 183
A.D.2d at 131 and then explicitly rejected by the New York Court of
Appeals inCodey, 82 N.Y.2d 521 (1993).
The affidavit of her expert, Mark Feldstein, submitted below, R. 344,
sheds no additional light on the reality of any hardship. Initially, it is
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important to note that the entire first point of Mr. Feldsteins various
assumptions relate to his opinion that there were thousands of
contemporaneous news reports concerning the mass shooting R. 345.
While there were indeed many news reports, he neglects to observe that
there was onlyonewhich was entitled EXCLUSIVE Movie Massacre
Suspect Sent Chilling Notebook to Psychiatrist Before Attack. R. 342. In
fact, he misstates the actual title of the article Winter published by failing to
include the word EXCLUSIVE from the title. Words matter. That word
was important because it established Winters article as the first revelation of
the contents of the recovered writings which were sourced to law
enforcement personnel. Indeed, none of the other articles in the record
describe the contents of the writings as having been revealed to them by law
enforcement personnel. See R. 405- 635. Many of the articles establish that
other news outlets reportthat law enforcement personnel had described the
contents of the writings, but only one, Winters, is EXCLUSIVE. And she
alone acknowledges that hersource was law enforcement. R. 342.
On the issue of hardship, Mr. Feldstein provides nothing but
unfounded speculation that Winters testimony in Colorado will produce
any ill effect on her. He is unable to identify even one example of any
journalist ever having suffered any hardship based on having revealed a
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source. His entire opinion is based on only one academic study which itself
does not identify any single journalist who has suffered professional
hardship by virtue of having testified in court.
The entirety of his hardship argument is that nearly one third of news
room leaders believe that sources are somewhat or much less willing to
speak on condition of confidentiality with reporters at their organizations
than they were five years ago. R. 356. He also points out that 7.7% of
those same news room leaders believe that sources are more willing to speak
on condition of confidentiality. R. 357. The math would therefore indicate
that two thirds of news room leaders believe that sources are currently as
willing or more willingto speak on condition of confidentiality to reporters
than they were five years ago. This is hardly a stunning indictment of the
hardship caused by subpoenas issued to reporters. Feldsteins statement is
plainly insufficient to demonstrate that reporters have suffered hardships or
that Winter will suffer hardship as a result of being subpoenaed. In any
event, the hardship he discusses associated with one academic study is
related to the issuance of a subpoena vel nonwhich is completely different
from the particular hardship claimed by Winter which, as she describes it, is
specific to what might happen to her career if she reveals a source.
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But Feldstein has even less to say about the factual or empirical basis
of his crystal ball claim that, If Winter reveals the identity of her
confidential sources, that could mean the end of her career as an
investigative journalist. Thats it... ipsi dixit.
A highly mobile news organization can scarcely claim hardship
associated with travelling to another jurisdiction. Codey 82 N.Y. 2d at 531.
Moreover, this case, as the Appellate Division correctly pointed out, is not
about what testimony Winter may or may not give when she goes to
Colorado. It is about whether she can be compelled to go to Colorado to
assert her claims there.Matter of Holmes v Winter, 970 N.Y.S.2d 766, __,
2013 N.Y. App. Div. LEXIS 5585 *6-7 (1st Dept. Aug. 20, 2013)(privilege
is irrelevant to this Courts determination since admissibility and privilege
remain within the purview of the demanding State rather than the sending
State.) Of course, that has already happened three timeswith no ill
effect.
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A. Reporters Who Testify Do Not Experience Hardship No MatterHow it is Defined
The entirety of Winters novel claim of hardship, is based on her
unfounded speculation, not based on a single actual fact, that it might be
possible at some unidentified point in the future, that some as-of-yet-
unknown and never-to-be-known potential source, may decide not to
disclose information to her if, after she appears in Colorado to give
testimony, she decides to do so. Nowhere in Winters affidavit, in her brief,
in the affidavit of her expert nor in the amicus brief filed in her support is
there supplied even one example of a reporter actually experiencing the
hardship described, or any hardship, when they do elect to testify.
Apparently, the sky simply does not fall.
The Amicus brief filed in this matter identifies a series of reporters
who have gamely resisted subpoenas by claiming the protection of the
Journalist Shield. Some of those reporters who worked in New York were
subpoenaed in New York and claimed the protection of the journalist shield
here. Others who did their work in other jurisdictions were subpoenaed in
other jurisdictions and claimed the protection of whatever journalist shield
protections were in place in those jurisdictions. None of the long list of
reporters noted in the Amicus brief describe reporters who, like Winter,
have conducted their activities in another jurisdiction and then retreated to
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New York to claim the protection of the New York Journalist Shield. Even
the oft cited,seeAmicus Brief at page 4, and much revered John Peter
Zenger in 1735 was a New York based publisher who published in New
York and was subpoenaed and refused to testify in New York.
As we discussed above, the Civil Rights Law 79-h [g] provides that
the privilege may onlybe waived by the professional journalist or
newscaster who is entitled to claim it. The privilege belongs to the journalist
who received the information so it may onlybe waived by her. It cannot be
waived by the confidential source. But many reporters do end up deciding to
testify. They do so for a variety of reasons. Some elect to testify after the
identity of their source becomes public, sometimes by the source themselves
and sometimes after being importuned by the reporter or others to release
the reporter from their promise of confidentiality and sometimes by other
means. Sometimes reporters testify after receiving subpoenas for material
they have received or notes they have generated or recordings or video they
have created. But whatever reason they decide to do so, one might presume
that the career-ending hardships which the Amicus and Winter speculate will
certainly occur when a reporter testifies, would happen with some
frequency. It would therefore be useful to determine what hardship is
experienced by those reporters who do elect to testify. The expected
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quoted is Mr. Pincuss explanation made to Jeffrey Toobin in aNew Yorker
article of why he did ultimately gave a deposition with little fanfare in the
Valerie Plame investigation to Special Counsel Fitzgerald in September
2004 and later he testified to the identity of his source in court. A lot of
reporters are egomaniacs, Pincus said. Some people want a confrontation.
They want us to be above the law. Were not.9Far from being reviled or
having his career destroyed for testifying, Pincus won the Arthur Ross
Media Award from the American Academy for Diplomacy in 2010.10Pincus
rebutted the idea of the so-called chilling effect of subpoenas on
journalists: Pincus has an idiosyncratic view of his legal predicament. Hes
skeptical of the notion that subpoenas to journalists necessarily have a
chilling effect on sources. My sources are not drying up, he told me. It
hasnt hurt me.Id. So much for hardship.
Mr. Pincus wrote again, more recently in the Washington Post about
the Associated Press printing of a leak of secret national security information
related to an Al-Qaida plot which seriously undermined national security
interests. Expressing his continued skepticism that there are any sources
dissuaded from carrying out their myopic vision of what should be public,
9Jeffrey Toobin, Annals of Law: Name That Source (The New Yorker, July 16,2006)
10http://www.academyofdiplomacy.org/awards/2010_Ross_Award.html
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despite the terrible harm that may be visited on individuals or the countrys
interests, he wrote:11
But how many times can the media claim such an action is
chilling sources? That was a claim during the Valerie Plame
case under the Bush administration and repeatedly invoked as
the Obama Justice Department has pursued leakers.
The risk of breaking the law apparently didnt chill those who
leaked the information to the AP. Thats what should be
considered chilling.
The reality is that this is not a whistleblowing case. There are
no heroes here, and the press in this instance was not protectingindividuals trying to expose government malfeasance.
Likewise, in this case, there are no whistleblowers and there are no heroes.
The leakers in this caseare corrupt law enforcement officers who
purposefully violated a court order in order to undermine a defendants right
to a fair trial. In a death penalty case, that is indeed chilling. There is no
greater good against which to measure the behavior of those corrupt law
enforcement officers.
Also in the Valerie Plame investigation, Judith Miller was subpoenaed
to testify about who had disclosed to her the identity of a covert CIA
operative. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141,
370 U.S. App. D.C. 4 (D.C. Cir. 2006). She initially refused and served 85
11Walter Pincus, The Washington Post, Fine Print: The press and national securityMay 20, 2013
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days in jail before she testified after being relieved of her promise by her
once secret source. Was her career destroyed? The answer is no. After
leaving the New York Times in 2005, Miller has continued to work in
Manhattan as a contributor to the Wall Street Journal. She is now an adjunct
fellow of the Manhattan Institute for Policy Research, a member of the
Council on Foreign Relations and was hired by Winters employer, Fox
News, in October 2008.12
Matthew Cooper, formerly of Time Magazine, was also subpoenaed at
the same time as Judith Miller. Instead of refusing to testify, his lawyers
called his source and got a release of the commitment of confidentiality.13
He then testified fully. How was his career affected after his lawyers called
his source, obtained a release of his pledge of confidentiality and he fully
testified? Cooper now works as the managing editor for White House
coverage for National Journal magazine. He has previously worked as a
blogger for Talking Points Memo, as a correspondent for The Atlantic and
for the Financial Crisis Inquiry Commission.14
12http://www.judithmiller.com/about/13Adam Liptak, New York Times, July 7, 2005. Reporter Jailed After Refusing to NameSource.14http://observer.com/2010/08/washington-allstar-matt-cooper-joins-emnational-
journalem-as-managing-editor/.
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Other reporters who have testified, often reluctantly, have likewise not
been subjected to hardship by having testified. In July 2003, three Chicago
reporters, Abdon Pallasch and Robert Herguth of the Chicago Sun Times
and Flynn McRoberts of the Chicago Tribune, were ordered by U.S. District
Judge Ronald A. Guzman to hand over taped interviews with FBI informant
David Rupert in the 2003 terrorism case against Michael McKevitt.15
See
McKevitt v. Pallasch, 339 F.3d 530 (7th
Cir. 2003). The reporters decided to
comply, and handed over their tapes. Were their careers destroyed after
complying with the subpoena? Pallasch made this decision four years into
his 13-year career with the Times; in 2012, he became the Illinois State
Budget Director after 25 years as a journalist.16
Herguth reported for the
Timesfor a decade, is currently the Investigations Editor for the Better
Government Association, and has worked as an adjunct professor at Loyola
University Chicago since 2006.17
McRoberts was the deputy projects editor
for the Chicago Tribune, and left the paper in 2009 to become the Chicago
Bureau Chief of Bloomberg News. McRoberts has also directed several
15 Matt OConnor, Chicago Tribune, July 4, 2003. 3 Reporters Lose Fight Over FBI
Mole Tapes.16
CBS Chicago, Sun-Times Pallasch to take over as Assistant Illinois Budget Director(July 23, 2012)17
Herguth faculty bio from Loyola University Chicago: http://www.luc.edu/soc/Part-
Time_Jrnl1.shtml
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news-teams that have been Pulitzer finalists or winners.18
These reporters
did not suffer undue hardship. There is no evidence provided in this record
that Winter will either.
CONCLUSION
It is respectfully submitted that this Court can and should resolve this
case with a simple affirmance. The Supreme Court in ONeill explained the
importance of fully enforcing the Uniform Act when it held:
By reciprocal, voluntary legislation the States have invented
methods to accomplish fruitful and unprohibited ends. A citizen
cannot shirk his duty, no matter how inconvenienced thereby, to
testify in criminal proceedings and grand jury investigations in
a State where he is found.
359 U.S. at 11.
The Uniform Act promotes comity among the states within the federal union
and prevents a witness from hiding from compulsory process, thereby
avoiding her duty to appear in criminal proceedings by removing herself to a
different jurisdiction. Winter has removed herself from Colorado and sought
refuge in New York which is exactly the sort of conduct which the Supreme
Court proscribed and for which the Uniform Act provides a remedy. She
should be compelled to continue appearing in Colorado, where she has
18Flynn McRoberts bio from Bloomberg News:
http://www.bloomberglink.com/people/flynn-mcroberts/
-
8/14/2019 James Holmes v. Jana Winter Brief for Petitioner-Respondent.
46/46
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