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Journalist asks delay in Colorado shooting case to fight subpoena

Police examine the car of James Eagen Holmes behind the theater where a gunman opened fire on moviegoers in Aurora, Colorado July 20, 2012.
Police examine the car of James Eagen Holmes behind the theater where a gunman opened fire on moviegoers in Aurora, Colorado July 20, 2012.

By Keith Coffman

DENVER (Reuters) - A Fox News journalist ordered to testify about confidential sources she cited in a story about the 2012 Colorado theater massacre is seeking a postponement to appeal the ruling, court documents made public on Tuesday showed.

New York-based TV reporter Jana Winter was ordered by Arapahoe County District Judge William Sylvester to appear in Colorado next month to testify about her story, which linked a notebook to accused gunman James Holmes. The story was reported after the judge issued a gag order in the case.

A New York judge issued a subpoena for Winter at Sylvester's request after several law enforcement officers denied under oath that they were the source for the story and Sylvester said there was no other way to trace the leak.

Holmes, a 25-year-old former neuroscience graduate student at the University of Colorado, is accused of killing 12 people and wounding 58 others during a screening of "The Dark Knight Rises" Batman movie in a suburban Denver theater last July

Prosecutors have charged the California native with multiple counts of first-degree murder and attempted murder for the shooting rampage.

Citing two anonymous law enforcement sources, Winter's story said that a notebook Holmes sent to university psychiatrist Lynne Fenton contained details of the upcoming massacre.

In a letter to Sylvester made public on Tuesday, Winter's lawyer, Michael Theis, said the out-of-state subpoena was filled with "a number of reversible errors," and more time was needed to file an appeal.

"We submit that forcing Ms. Winter, who also has rights both as a journalist and as a citizen from outside ... Colorado, to testify before she has the opportunity to advocate her very strong legal position ... is not in the interests of justice," the letter said.

Holmes' public defenders said the story jeopardized their client's right to a fair trial and asked Sylvester to impose sanctions on prosecutors for the leak.

But Theis said New York's shield law, which protects journalists from having to reveal sources, is "absolute" and trumps Colorado's less rigorous standard, which offers just qualified protection for confidential sources.

Theis accused Holmes' public defenders of "dilatory" tactics, and said that defense lawyers threatened to file contempt of court charges in New York against Winter if she refused to testify.

At a hearing last week, Sylvester entered a not guilty plea for Holmes but said that the plea can be change at a later date to not guilty by reason of insanity.

Arapahoe County District Attorney George Brauchler said he will notify the court next month if he intends to seek the death penalty.

(Editing by Dan Whitcomb and Steve Orlofsky)