james holmes v. jana winter brief for petitioner-respondent

8/14/2019 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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i

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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ii

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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iii

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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iv

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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v

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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2

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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18

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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19

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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21

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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23

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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24

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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26

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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27

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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28

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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31

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/


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james holmes v. jana winter brief for petitioner-respondent

Documents