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Aurora Shooting Update: Reporter in Holmes case, Jana Winter of Fox News, could be jailed for refusing to reveal source

Fox News reporter Jana Winter arriving at district court in Centennial, Colo., on Monday, April 1, 2013 AP Photo/Ed Andrieski

(CBS) - Fox News reporter Jana Winter is scheduled to attend a hearing Wednesday as part of an ongoing attempt to compel her to reveal the law enforcement source who told her that the suspect in the Aurora movie theater shooting had mailed a notebook of writings to a psychiatrist at the University of Colorado, Denver, before the massacre.

According to the Associated Press, Holmes' defense says the source violated a gag order in the murder case against the accused, and could damage the credibility of those officials if they are called to testify.

The Denver Post reports that Judge Carlos A. Samour Jr., ruled Monday that he will postpone his decision about whether to compel Winter to name her source until he decides if the notebook will be entered into evidence. If he goes forward with the order, and Winter continues refusing to name her source, she faces jail time or a fine.

"Taking information from a confidential source, especially for a case like this, is serious business," says Al Tompkins, senior faculty at The Poynter Institute, a Florida-based journalism school. "There is great peril in reporting around stories that have gag orders."

Tompkins points out that while the judge is likely concerned that violation of his gag order could imperil a fair trial, Winter has obligations to her source, who could potentially sue her for revealing his or her name.

"If you've granted anonymity, it's a binding legal contract," he told Crimesider. "You can't just break that."

Although rare, Winter's predicament is "not uncommon," says Lucy Dalglish, the Dean of the University of Maryland's Philip Merrill College of Journalism.

Dalglish estimates that two or three reporters are subpoenaed yearly in the U.S. regarding information they've received for confidential sources. According to the Reporters Committee for Freedom of the Press (RCFP), the last journalist to go to jail for refusing to reveal a source was Judith Miller, a former New York Times reporter who spent 85 days behind bars in 2005.

In 2011, New York Times national security reporter James Risen was served with a subpoena to testify about sources for his book, "State of War: The Secret History of the C.I.A. and the Bush Administration." According to the Times, the Obama administration believed that Jeffrey Sterling, a former CIA agent on trial for leaking information, served as one of Risen's sources. Dalglish says Risen has been fighting the federal government ever since.

More common than being subpoenaed to reveal a source, says Dalglish, is being subpoenaed to turn over information collected in the course of reporting.

In 2006, California journalist Josh Wolf spent seven months in jail for refusing to turn over video that law enforcement said depicted protesters damaging a police car.

"Usually, newsroom protocol is to fight [against turning over] anything that hasn't been reported," says Tompkins. That could include interview notes, video, or photographs.

According to RCFP, 40 states, including Colorado, have so-called "shield" laws providing protections for journalists and their sources. However, Colorado's law is not absolute, and states that protection can be defeated in certain circumstances, including if the information sought cannot be obtained by other means or is, according to RCFP, "directly relevant to a substantial issue involved in the proceedings."

Although Tompkins says he understands that the judge in the Aurora case has to ensure that Holmes, who is facing the death penalty, receives a fair trial from an impartial jury, he thinks the gag order is what created the problem in the first place.

Winter, he says, was performing an essential service by reporting information that questioned whether people in positions of power should have alerted authorities to the possibility that Holmes was dangerous.

"Imagine if Woodward and Bernstein had to face the threat of turning over their sources," asks Tompkins, referring to the Washington Post reporters who broke the Watergate story that led to the resignation of President Nixon. "How would American history have changed if they'd faced a similar gag order?"

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