The judge in the case made the right call in putting off deciding whether Fox News reporter Jana Winter should be imprisoned if she continues to refuse to reveal her sources.
Ultimately, it's a reach to see how the identity of anonymous sources cited in her report, which described the contents of a notebook that accused mass murderer James Holmes sent to his psychiatrist before the killings, could be pivotal to a substantial issue in the case.
Though of course Holmes is presumed innocent until proven guilty, the publicly revealed evidence against him is overwhelming.
A cop violating a gag order to talk about the notebook, if that indeed is what happened, would seem to be a tangential issue in the massive case.
A possible toehold Holmes has for seeking the identity of the sources comes about if he pursues a plea of not guilty by reason of insanity.
In that situation, the notebook is no longer considered privileged communication between Holmes and his psychiatrist, Lynne Fenton.
The notebook reportedly included details of how he was going to kill people. The prosecution could use it to attempt to prove sanity and premeditation.
The source of the leak might become relevant if Holmes can somehow prove a cop or cops lied under oath when previously questioned about the notebook. The defense might then attempt to undercut police integrity. But that scenario, frankly, is a longshot.
And whether Holmes could prove any of it is far from clear. As Judge Carlos A. Samour Jr. said in his order, the defense still has work to do in thoroughly questioning police to determine whether they can find the source on their own.
The First Amendment's free speech guarantees are essential to a vigorous democracy. Holmes has a long way to go before making a case that his need to know who talked about his notebook outweighs free press protections.
The Denver Post, April 10