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Susan Estrich
10 May 2013
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Justice Deferred

Comment

In a hearing earlier this week, the judge presiding over the trial in Colorado of accused mass murderer James Holmes deferred deciding whether Fox News reporter Jana Winter should be forced into the "Hobson's choice" of revealing her confidential sources or going to jail for six months.

This is not a case where the identities of the confidential informants are relevant to guilt or innocence. This is not a case where the defendant's right to a fair trial will even remotely be violated by maintaining the confidentiality of a reporter's sources. This is not, in short, a close case.

Or at least it should not be. But that is scant comfort to a reporter who could find herself without a career as an investigative journalist (Who would talk to a reporter in confidence knowing that confidence will not necessarily be respected?) or sitting in a cell while lawyers try to appeal a judgment made by a single judge, which is all it could take to land her in jail.

The facts are straightforward and make clear the irrelevance of Winter's story to the issue of Holmes' guilt. Back in July, Winter reported that the accused had sent a chilling notebook to his psychiatrist at the University of Colorado, citing "law enforcement sources."

Law enforcement sources could mean police officers involved in the investigation of the case. It could mean their secretaries who saw a report on the case. It could mean someone in a clerk's office. It could mean the cleaning crew — a well-known investigative reporter once told me the best sources are the cleaning crew. In my own experience, a leak when I was a clerk on the Supreme Court cast enormous suspicion on the clerks until the leak was ultimately traced to the printing office — which would also be, officially, a "court" source.

While Winter was facing a decision as early as Wednesday on whether she would be forced to testify on pain of jail, the judge reasoned that he should defer that decision until he determined, at a minimum, whether the notebook would even be admitted at trial. He also speculated — and it is speculation — that if a source of Winter's story is one of the 14 police officers who have denied being the source, and if that police officer were to ultimately testify at trial, then the fact that he or she lied about being a source would be relevant to their credibility (subject, of course, to the additional if that the testimony is more than a recitation of undisputed facts involving the police investigation, which is what it often is).

Reasonable questions. This is clearly a smart and thoughtful judge. (Ask any judge, and they'll tell you that not all judges are. Winter is "lucky" in that regard, at least.)

But the answer to the hypotheticals, in light of Colorado law, is still clear: A series of speculative possibilities is not enough to override the protections of the First Amendment, much less of a shield law intended to ensure that the rights of reporters are protected (even beyond the limits of the First Amendment as currently interpreted by the Supreme Court), absent an overriding and compelling need for their testimony.

Colorado law establishes that three conditions must be met before a reporter can be required to name their sources. None of them is met here.

The identity of the sources does not go to a substantial issue in the case: here, Holmes' guilt or innocence, or the proper punishment to be imposed.

Forcing the reporter to testify is not the only way to get to the bottom of who leaked the notebook: In my judgment, it would be a useless sideshow. But if the court wants to order the police or prosecutors to conduct a "man/woman hunt" within their own ranks, he has the power to do so.

And most important, the "requesting party's" interest (here, Holmes' interest) does not outweigh the right of the reporter to report — and of the public to know the facts about a case of enormous public interest. Holmes' right to a fair trial does not mean a right to a trial in which no juror has been exposed to pretrial publicity. Were that the standard, Holmes could not be tried anywhere in America. It is the right to be tried by jurors who affirm that they will decide the case based on the evidence presented in court.

At the end of the day, it is not only Winter who faces jeopardy here. It's not only other investigative reporters, who could face the same "Hobson's choice." It is all of us, the public, who have a right to know truths that are often unavailable except through reliance on confidential sources.

To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.

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Comments

7 Comments | Post Comment
Estrich says " It is all of us, the public, who have a right to know truths that are often unavailable except through reliance on confidential sources"

Save when it suits the disingenuous writing an article, the notion that the public have a right to know the truth seems to be easily cast aside by Estrich, liberals in general and wholly ignored by the totality of the US mainstream media which today is no more than paid "liars by omission" for the Democrats and statists and which among many other pre meditated betrayals of the people

(1) refuses to report the truth about Obama, his origins, his ideology, his fellow travelers, his past associations and

(2) ignores and refuses to report the facts of obama's outright lies and deceits on every matter affecting the people of this Republic and

(3) which assisted in the cover up of the events in Benghazi and which assisted in the cover up of the Obama and Holder guided ATF gun running operation "Fast and Furious" and

(4) which lied and lies consistently about the real effects of obamacare and

(5) which lied and lies consistently about the liberal hoax known as man made "global warming" and

(6) which dishonestly rehearses liberal dogma as news and

(7) which will assist in every way it can to move the statist agenda forward no matter how dishonestly.

Truth from obama's bought and paid for propaganda wing? Sober up!
Comment: #1
Posted by: joseph wright
Tue Apr 9, 2013 3:15 PM
Ms. Estrich wrote:
"the public, who have a right to know truths that are often unavailable except through reliance on confidential sources."

I'm confused about this. Why do I have any 'right' to know about Mr. Holmes' notebooks? What possible urgent need does the public have for this bit of information? Why couldn't the public's 'right to know' have been differed until after the trial when this kind of information could be released at no harm to anyone? Doesn't the reporter want to release this info now because it will sell newspapers, not because of the public's 'right to know'? Why is this reporter and her newspaper allowed to use the public's 'rights' as a defensive screen for their commercially lucrative activities? I'm finding it very difficult to be concerned about this reporter or the imminent danger to my 'right to know' presented by her case.

It seems awfully odd to me that I have some 'right' to this info about a mass murderer, but no right to get a peek at the dear leaders college transcripts. But then I'm a Physicist and not a Lawyer. I must not be thinking properly.
Comment: #2
Posted by: Old Navy
Tue Apr 9, 2013 4:29 PM
Re: Old Navy
The reason we haven't had a peek at the college transcripts is he hasn't been charged with a crime. That's yet to come.
Comment: #3
Posted by: Oldtimer
Wed Apr 10, 2013 8:10 AM
Estrich says " It is all of us, the public, who have a right to know truths that are often unavailable except through reliance on confidential sources".

Before any liberal or Democrat has even a chance of convincing me they truly care about the public's "right to know", perhaps they will require all abortion clinics to provide this article for required reading along with pictures of what an aborted fetus looks like and what is done to the aborted fetus.

Gosnell Worker: Baby “Jumped” When I Snipped Her Neck in Abortion

One day after a former employee described how she heard a baby scream during a live-birth abortion, another worker at the Kermit Gosnell “House of Horrors' abortion clinic testified today she saw a baby “jump” when she snipped her neck in an abortion.

Gosnell and his staff brutally jabbed medical scissors into the neck of unborn children after birthing them, in a so-called live-birth abortion process.

I am sure Kermit Gosnell is a proud, pro choice, anti gun, liberal Democrat with full support of Obama. Indeed, Obama's position is that a "fetus outside of the womb" can be killed at the discretion of the doctor.

Indeed, liberal democrats full support Gosnell's "snipping" the spinal cord of live babies to kill them. And these people complain about the freedom of information ??

Planned Parenthood Lobbyist Alisa LaPolt Snow, a liberal democrat, supports infanticide and testified against a Florida Bill requiring abortionists to provide emergency medical care to an infant who survives an abortion. Snow contends a women should be allowed to kill her child if it somehow survives an abortion.

Obama and liberal democrats fully support Alisa Snow.

I have to believe that If a woman were told the truth (you know, "her right to know" which liberals pretend to be so concerned about) about what these liberal monsters were going to do to the woman's live baby, no way she would allow such to happen. Otherwise, such women really are human garbage.

In any event, those who support not fully informing women what is being done to their unborn child, showing them what their unborn child looks like, are human garbage and Obama is among such group. Most women I know would not allow another human treat a new born puppy the why these women are allowing liberal democrats to kill THEIR baby.

Such makes my heart hurt for humanity. Liberals really make it difficult to be proud of being human.
Comment: #4
Posted by: SusansMirror
Wed Apr 10, 2013 8:18 AM
Re: SusansMirror
Amen to all of that ! But you make the mistake of seemingly attributing basic human qualities to liberals such that one would compare oneself to them.
Comment: #5
Posted by: joseph wright
Wed Apr 10, 2013 5:52 PM
Re: joseph wright;... But Joe, We are hoomans...
I do not like infanticide or abortions, but the limit of state power must end where the body begins or no one anywhere can be honestly called free...
Now; we have property rights and religious rights as privilages, set apart and above all other civil rights and the difference is that property rights and religious rights are not equally shared... We all may believe in God, but we do not get the church's tax abatement...We would not normally tolerate some one with a larger family swallowing up our family as we see corporations forever doing... More property means more power, and though it is as antithetical to the notion of democratic equality as are the privilages of organized religion, still it is fact; and the government protects that fact against labor unions and all others...
There was supposed to be separation of church and state because of the abuses of churches by the Puritans during the English Revolution, and the by Church of England reaction following... The churches did not want other denominations to have power through the state over them, but it has resulted in the churches exercising a great deal of power over individuals along with corporations and other masters of property...
I do not expect the churches to willingly give up their power over their flocks, or the power of their flocks over the body politic... I do hope a reaction to it will some day wipe organized religions from this land... How dare you tell women or anyone what to do with their own bodies??? You don't like it??? Find some moral way of dealing with it... I think you have a decent moral argument; but no legal argument at all; and to impose a law without right, and without reason is simply coercion...
I know some of you people must be smart enough to figure this out... So what if you can exercise the power you have to make women jump through hoops on fire for you??? Would that make it right??? And by what right do you say that your morality is better in forcing her to do something against her best interest, and will, when she has never tried to do the same with you...
Consider that the Greeks who were masterfully logical for their time could not prosecute any one for a murder if there were no relative to make the charge... Even the owner of a slave could not bring a charge of murder because he was considered unrelated to the slave... One must have standing, but there must also be an injured party and there is, and it is the one responsible for the deed, and since it occured within her body over which I have no control, I cannot honorably make an issue of it... My freedom is no greater than hers, and my freedom and power ends with my own body... What you consider is a good reason to limit her freedom does not count for anything, and it would mean the most obtuse twisting of law to give you a standing in the case...
I think the whole of society is damned for not offering alternatives to such women as consider abortion their only hope, but where are the churches helping with this... Even the Catholics stopped offering adoption services because they might have to let gays and lesbians have children... WHO are they trying to help??? If a child needs some one to care for them, will they care that the person caring for them has needs too??? Is there a better time than in childhood to learn to live and let live???
Do something hard for once... It takes nothing to make a law and turn a whole tribe of desparate women into criminals... Do the hard thing and give them help or a realistic alternative... You must certainly think women are inhuman, but the inhumanity is on the church side... Churches want to see children brought into the world without love, without money, and they will not give a penny or an ounce of love to see such children born... Churches are loveless and lazy and stingy...It is because of such uncaring unloving people that women are forced to have abortions so they can be libled as inhuman...Grow some intelligence for Christ's sake...
Consider that every crime is a sin, and not every sin is a crime; but of sins that should be crimes I would rank hypocracy a capital charge... How many Christians would survive under those conditions??? Abalard may have said that crime is a matter of intent, and if he did not say it, then I will take credit... What is the intent of the poor mother??? Is her intent the expression of hatred as is yours??? She did not build her life from a model kit, but is trying to fill what she has as best she can...
Do you want some authority in her life??? Go to the court, and plead with them to plead with her to give you her child for adoption, and make the adoption immediate so that you bear all medical costs before birth and after... Do not say that baby is yours... Say you belong to that child, that the child will be your first, and final responsibility, and that you will not deny that child as Peter denied...And then having done all you can to avert what you must feel is a sin, you can then rest easy and certain of your salvation because there is nothing within your rights that you can do...
Is the church wall more immune to the intrusion of the state than is the human body??? The privilages of church and of property were given by this people, and they can be denied if the churches and property remain obnoxious... No one can tell you what to believe, but if you need to be told that the limits of your rights are found in the injury of another, then consider it my job, and a job I am proud to do...
Your privilages and the privilages of all granted by the state and by the people are based upon the rights of the individual... It is only uncivil, impolite, and unwise to use your privilages to attack the rights upon which your privilage hangs...Lots of people have cut themselves into the hole; and why shouldn't you??? Who ever is telling you that you have morality on your side is lying in your face... There is one morality, and it is justice, and if you do not stand for justice, then every inhumanity that follows is on you..
It is the price of privilages enjoyed unequally in this land that do not pay their own way that makes the young feel so oppressed... And you want to attack the victims of our society for taking the only choice they are shown... I stand for justice, which means I stand against privilages... I stand for humanity that needs justice to survive, and humanity must have justice to bear children... No one by choice bears a child into slavery... No one by choice brings a baby to misery... I understand the mercy of a mother who wants to save her children from the cruelty of people like you... You may guess that the mother who thinks it is the greater love to spare her child the misery of her dying society would make a great mother, a better mother than one who bears a child to make a point... All I know is what I know, my own business in fact, which is the limit of my responsibility, unless some one in need should ask...
Thanks...Sweeney
Comment: #6
Posted by: James A, Sweeney
Thu Apr 11, 2013 3:36 PM
Re: Old Navy;... You do not have the right to know; but the obligation to know anything, and everything that might be of use to you or effective in your survival...
We cannot expect corporation media to give us the truth or even an approximation; and when some one does for what ever reason, we should thank them as much as we should prosecute those who lie to us... We personally need the truth, but no less than the whole of society... Look at how long our government sits on the facts, or on intelligence... They want to make history meaningless and irrelevent to the course of the society... They know, and we do not know, and for just about any reason, knowledge can be withheld...
We are beginning to see what happens in a society when the people are denied the truth, and denied the democracy with which they could adapt to the truth...This want of truth is the primary reason for the distrust with which the people view their government...People can say any outrageous things, and think any outrageous thing because they have no democratic power; but when a desparate people begin to guess the truth it might be better if they just knew it from a reliable source, which the government isn't... Scared people make scared guesses, and that should frighten us all... But what are you going to do when the government has ruined its trust with the people...
Right now the government could tell a lot of people that their heads were on fire, and they might be and many would not believe it until they sweated or smelled smoke..
This is what the government has come to... In a republic the leaders lead... In a democracy the people lead and for that they need the truth and the power to choose...We cannot expect people who get elected to great power and privilage will ever tell us the truth especially if they know it will not please us...So they eat the sugar and pass the blame and we get stuck with the bill...
All right; you have to start some where... We are not a well educated society...We do not have education for the sake of education...We were founded by the rich giving little power to the people because those who wrote the constitution feared democracy and hated the common people... We were uneducated, so we could be denied power on that excuse, and being denied power, we could continue to be denied education...
Why is common knowledge bought with great expense by humanity so difficult to afford to house between ones ears... The truth is common property, commonwealth... Knowledge of the facts is our sole title to the commonwealth of this land... The wonder is not that so many are ignorant and broadcast their ignorance; but that so many know so much given the work they must do beyond their own support to know anything...
It is our obligation to know, but we must have democracy regardless... If people truly governed, they would have to learn to think reasonably and learn the facts upon which to judge... The ignorance they testify to every time they open their mouths is a result of their want of true power, and is only possible because they are irresponsible... What matter what runs out of their minds at the mouth...They can make nothing of it because they are powerless, and powerless they never need to make wise choices based upon reason...
No one can educate America... But allow America democracy and you will force people to educate themselves..
Thanks...Sweeney
Comment: #7
Posted by: James A, Sweeney
Thu Apr 11, 2013 4:13 PM
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