DENVER (CN) - A Fox News reporter said she will appeal orders to testify in the trial of the man accused of killing 12 people at the midnight premiere of "The Dark Knight Rises."
James Holmes, 25, faces 166 criminal counts, including murder, attempted murder and weapons charges, related to the July 20, 2012, massacre at an Aurora, Colo., movie theater. Holmes allegedly opened fire on the crowd that had gathered to see the latest installment in the Batman franchise, killing 12 and injuring 70.
At his arraignment
last week in Arapahoe County Court, defense attorney Daniel King revealed that a New York judge had signed a proposed subpoena for Fox News reporter Jana Winter to testify at the Colorado trial.
Days after the massacre, Winter wrote an exclusive
that said Holmes had sent his University of Colorado psychiatrist a notebook containing images of "gun-wielding stick figures blowing away other stick figures" and "details about how he was going to kill people."
Though Winter did not identify the recipient of that notebook, a lawsuit
filed by the widow of Jonathan Blunk, who died in the shooting, claims that psychiatrist Lynne Fenton failed to act after Holmes told her that "he fantasized about killing a lot of people."
Attorneys for Holmes argued in a January subpoena motion
that Winter knowingly violated a court-issued gag order when she published her article.
"On July 23, 2012, the Aurora Police Department took a package into custody sent by Mr. Holmes to his University of Colorado psychiatrist," the motion stated. "Despite the fact that, as explained below, the package and its privileged contents were made subject to a protective order issued by this Court, an article written by Fox News reporter Jana Winter revealing alleged details about the contents of the package was published on the Fox News website on July 25, 2012. Undersigned counsel have used all available means to determine which law enforcement agent violated this Court's Order by leaking the contents of this notebook to the media. As none of these efforts have revealed the source of the leaked information, Jana Winter has become a material and necessary witness in this case and her notes are material and necessary to the defense in this matter."
The defense said that none of the law enforcement officials who testified in court that they had seen the notebook admitted to leaking its contents to Winter.
Arapahoe County District Judge William Sylvester approved
the subpoena request, saying: "The potential violation of this court's orders is a serious issue. The information about the package contents has received significant public attention that has implicated defendant's constitutional rights to a fair trial, to a fair and impartial jury, and to due process as protected by the Fifth, Sixth, and Fourteenth Amendments."
He warned that any sources that lied under oath could face felony charges.
"Additionally, in her article, Jana Winter asserted that 'two unnamed law enforcement sources' divulged the aforementioned information to her. If this statement is accurate, then due to the fact that all who had access to the package denied under oath that they spoke to her or knew anyone who spoke to her, perjury in the first degree may be implicated under CRS 18-8-502. Under Colorado law, this is a class four felony. If her assertion is inaccurate, then substantial resources will have been unnecessarily expended pursuing this issue."
Winter, who cited two unnamed law enforcement officials as her sources, reportedly plans to appeal.
If that appeal fails, she is scheduled to testify before Sylvester on April 1. At the same hearing, the prosecution will announce whether it plans to seek the death penalty.