Holmes' Defense Misled Judge?

Arapahoe County Sheriff/AP Photo

An attorney for a journalist reporting on last summer's theater massacre in Aurora, Colo., has accused the defense team for James Holmes of misleading the judge overseeing the case, a charge the defense strongly denied.

The journalist, Jana Winter, is fighting an effort to force her to reveal confidential sources used in a story about a notebook that Holmes sent to his psychiatrist Lynne Fenton before the shooting. Fenton never received the package containing the notebook, and it was seized by police.

Fox News published an article written by Winter citing two unnamed law enforcement officials who said the notebook contained "full details about how he was going to kill people" and "drawings and illustrations of the massacre."

A gag order in the case was in effect when the article was published, and Holmes' attorneys have been trying to determine who leaked the information to Fox News. At a hearing in December, several law enforcement officers testified they were not the source of the leak.

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On Jan. 25, Holmes' defense team asked for a hearing on the matter be delayed until April, citing the "complex and difficult" process to serve Winter with a subpoena in New York, where she is based.

"Based on current attempts to communicate with Fox News," a defense motion said, "the defense anticipates ongoing resistance in efforts to compel Ms. Winter's attendance and testimony."

In a letter to the defense team made public today, Winter's attorney claimed Holmes' defense team has made no effort to contact Winter or her employer.

"We have been advised by Fox News that the above representation is false and, in fact, you have not contacted Fox News in any way shape or form," wrote attorney Dori Ann Hanswirth. "We are of the view that your misrepresentation to the court is highly inappropriate and was intended to give, and has given, the court a false impression."

Defense attorneys responded with a motion and a sworn affidavit calling Hanswirth's allegations "untrue."

The affidavit by Colorado State Public Defender Investigator Nova Whorton said members of the defense team began calling Fox News on Nov. 8, but were not able to reach a live person. It added that Whorton next called Fox News on Jan. 22, attempting to reach the legal department nearly 20 times. Each time, Whorton said, the calls ended up transferred to an extension that was never answered.

Hanswirth signaled that if the defense proceeds with trying to force Winter to reveal her sources, it is in for a fight.

"Under the New York shield law, a reporter's confidential sources are absolutely privileged, and testimony about those sources cannot be compelled by any governmental body regardless of the purpose for which that testimony is sought," wrote Hanswirth.

A hearing on the issue of the leak was scheduled for next week. However, Judge William Sylvester pushed the hearing back on the calendar until April because the defense said it was not ready and because Sylvester wanted to make sure there were no errors introduced in the legal proceedings.

"These issues are extremely important as either a member of law enforcement has committed perjury," wrote Sylvester, "or a journalist has fabricated a story."

Twelve people were killed, 58 shot and 12 others injured when Holmes allegedly opened fire at a crowded midnight screening of "The Dark Knight Rises" on July 20.

Holmes has not entered a plea. His arraignment is scheduled for March 12.

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