In the Matter of James Holmes, Respondent,v.Jana Winter, Appellant,

Brief

N.Y.November 12, 2013

To Be Argued By: DANIEL N. ARSHACK Time Requested 15 Minutes APL-2013-00239 New York County Clerk’s Case No. 30037/13 Court of Appeals STATE OF NEW YORK In the Matter of the Application of JAMES HOLMES, Petitioner-Respondent, A Defendant in the State of Colorado for a Subpoena Directing Jana Winter to Appear as a Witness, etc., -against- JANA WINTER, Respondent-Appellant. BRIEF FOR PETITIONER-RESPONDENT d DANIEL N. ARSHACK ARSHACK, HAJEK & LEHRMAN, PLLC 1790 Broadway, Suite 710 New York, New York 10019 Telephone: (212) 582-6500 Facsimile: (212) 459-0568 RICHARD D. WILLSTATTER GREEN & WILLSTATTER 200 Mamaroneck Avenue, Suite 605 White Plains, New York 10601 Telephone: (914) 948-5656 Facsimile: (914) 948-8730 Attorneys for Petitioner-RespondentSeptember 30, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... ii STATEMENT REGARDING THE STATUS OF RELATED LITIGATION …………………………………………………………….................iv PRELIMINARY STATEMENT ............................................................................ 1 QUESTIONS PRESENTED .................................................................................... 8 ARGUMENT ................................................................................................................. 9 I. UNDER CPL 640.10, THE APPLICATION OF JOURNALIST SHIELD LAWS AND THEIR FOUNDATIONAL POLICIES ARE IRRELEVANT TO THE SENDING COURT’S DECISION TO ISSUE A SUBPOENA. ............................................................................................................. 9 II. CIVIL RIGHTS LAW § 79-h DOES NOT ESTABLISH ANY SPECIAL CLASS OF CITIZENS WHO ARE IMMUNE FROM BEING DIRECTED TO APPEAR IN OTHER STATES’ CRIMINAL PROCEEDINGS PURSUANT TO CPL 640.10. ........................................... 15 III. THE TRIAL COURT’S FINDING THAT WINTER FAILED TO SHOW SHE WOULD SUFFER “UNDUE HARDSHIP” WITHIN THE MEANING OF CPL 640.10 WAS CORRECT AND WELL WITHIN THE DISCRETION OF THE SUPREME COURT AS CONSIDERATIONS OF PRIVILEGE ARE IRRELEVANT TO THAT DETERMINATION AND WINTER’S REPEATED APPEARANCES IN COLORADO HAVE NOT CAUSED HER ANY HARDSHIP. ......... 27 A. Reporters Who Testify Do Not Experience Hardship No Matter How it is Defined ............................................................................... 32 CONCLUSION ........................................................................................................... 39 ii TABLE OF AUTHORITIES Cases Beach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476 N.Y.S.2d 765 (1984) ........................................................................................................ 19 Branzburg v. Hayes, 408 U.S. 665, 708, 92 S. Ct. 2646, 2670 (1972) .......... 9 Chambers v Mississippi, 410 U.S. 284, 93 S. Ct. 1038, 35 L.Ed.2d 297 (1973) ................................................................................................. 21 Conn. Mut. L. Ins. Co. v. Union Trust Co., 112 U.S. 250, 5 S. Ct. 119, 28 L. Ed. 708 (1884). ................................................................................ 20 Debra H. v Janice R., 14 N.Y.3d 576 (2010) ............................................... 24 Ehrlich-Bober & Co. v University of Houston, 49 N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604 (1980) ...................................................... 25 In re Application of Codey, 183 A.D.2d 126 (1st Dept. 1992)................ 13, 28 In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 370 U.S.App. D.C. 4 (D.C. Cir. 2006) ............................................................. 36 In re Pitman, 201 N.Y.S.2d 1000 (N.Y. Gen. Sess. 1960) ........................... 17 Matter of Codey v. Capital Cities, American Broadcasting Corp., Inc., 82 N.Y.2d 521, 605 N.Y.S.2d 661(1993) .......................................... passim Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980) .............................................................................. 11 Matter of Holmes v Winter, 970 N.Y.S.2d 766, 2013 N.Y. App. Div. LEXIS 5585 (1st Dept. Aug. 20, 2013) ................................................... 31 McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003) ...................................... 38 People v. Hawkins, 157 N.Y. 1 (1899) ......................................................... 16 People v. Marcy, 91 Mich. App. 399 (Mich. Ct. App. 1979) ....................... 28 People v. McCartney, 38 N.Y.2d 618 (1976) ......................................... 10, 23 People v. the State of N.Y v. O’Neill, 359 U.S. 1, 5, 79 S. Ct. 564, 569 (1959) ................................................................................................. passim Rodriguez v. United States, 480 U.S. 522 (1987) ......................................... 18 Tracy v. Superior Court, 168 Ariz. 23, 810 P.2d 1030 (Ariz. 1991) ..... 17, 18 Washington v Texas, 388 U.S. 14 (1967) ..................................................... 21 iii Statutes CPL 60.15 ...................................................................................................... 9 CPL 640.10 ........................................................................................... passim N.Y. Civ. Rights Law § 12 ............................................................................. 9 N.Y. Civ. Rights Law § 79-h ................................................................. passim Constitutional Provisions Colo. Const. Art. 2 § 16 .................................................................................. 9 Colo. Const. Art. 2 § 25 .................................................................................. 9 U.S. Const. Amend. VI ................................................................................... 9 U.S. Const. Amend. XIV ................................................................................ 9 iv STATEMENT REGARDING THE STATUS OF RELATED LITIGATION At the time this brief was filed, Appellant Jana Winter’s motion to quash and for a protective order in the Colorado District Court remained pending.1 The soonest that court will likely rule on the motion will be January 3, 2014. Colorado Judge Samour, who will be resolving that motion, has already ruled that that Ms. Winter’s testimony is highly relevant to his inquiry because the contents of the notebook and the manner in which it was obtained “may well prove to be a critical piece of evidence in this case. [...] Of course, the more significant any admissible contents of the notebook are, the more significant the credibility of one or more of the [detectives who denied releasing the notebook] is likely to be at trial."(emphasis added)2 The Colorado court has already established in this death penalty case that the credibility of a corrupt law enforcement officer who leaked this crucial evidence to the press is central to the 1http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_ Courts/12CR1522/002/2013-03- 28%20Motion%20for%20Protective%20Order%20and%20to%20Quash%20Subpoena% 20Duces%20Tecum%20and%20Ad%20Testificandum.pdf 2 See Order Regarding Jana Winter s Second Ripeness Contention Raised in Support of Her Motion to Quash Subpoena and for Protective Order (C-26(a)), signed on April 8, 2013, People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cnty filed July 20, 2012), available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_ Courts/12CR1522/004/C-53%2009%2003%2013.pdf v defense. The resolution of Winter’s pending motion, in Colorado, to quash her subpoena will therefore resolve her claim of privilege in Colorado. 1 PRELIMINARY STATEMENT This is a simple case. The trial court and the Appellate Division correctly followed the law of the State of New York, Criminal Procedure Law 640.10, by issuing a subpoena to a New York citizen, Jana Winter, to appear as witness in a Colorado criminal case. In her brief at page 9, Winter explains her view of what this case is about by stating, “In the wake of Holmes’ depravity, many were left asking ‘why?’ This case is about Jana Winter’s attempts to answer that question.” Rather than engage in the exploration that Winter invites, this Court should, instead answer the much narrower question of whether a citizen of New York, even a citizen journalist of New York, is, like the rest of us, obligated to appear in a sister state pursuant to CPL 640.10 which codifies the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases. That statute expresses an important public policy: to require New Yorkers to appear in sister states’ criminal proceedings when their expected testimony is both material and necessary with the understanding that other states will provide reciprocal assistance in a New York prosecution. 2 The context of this case, however, should not be forgotten. Shortly after the arrest of Mr. Holmes in Colorado, law enforcement learned that Mr. Holmes had mailed a personal notebook to the office of his psychiatrist at the University of Colorado where he had previously attended school. Those writings were recovered from the University’s mail center by Colorado law enforcement officers. While the Colorado Court had previously issued a gag order covering the entire case, the Court immediately issued an additional gag order relating specifically to the writings. Both gag orders covered the conduct of every law enforcement officer involved in the investigation. R. 44, R. 712. Obviously, the legal issues associated with Mr. Holmes’ communication with his psychiatrist needed to be addressed and the inflammatory nature of the evidence had to be controlled. After the gag order was issued by the Court, two Colorado law enforcement officers gave Winter, who was at the time present in Colorado working on the Holmes story, their descriptions of the contents of those writings. By doing so, those unnamed law enforcement officers illegally and corruptly attempted to influence both the process and result in a very high profile potential death penalty case. The Colorado District Court, understandably concerned that its order had been violated and worried that the fundamental fairness of a 3 potential death penalty case had been compromised, held a hearing to determine which of the law enforcement officers who had access to the writings had violated his order. The twenty officers who had access to the writings testified that they had not violated the order, but at least two of them appear to have committed perjury by so testifying. R. 111. Thereafter, because Jana Winter was the one person who obviously knew which of them had violated that order, the Colorado District Court issued a certificate of materiality and necessity pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State which Colorado, like every other state, has adopted. So, it cannot fairly be suggested, even though it is not relevant to the ultimate resolution of the issues presented by this case, that Winter of Fox News was engaged in providing needed information to the public. This is not a whistle blowing case in which some aspect of government malfeasance is revealed to a thankful public. Instead, Winter and her sources served the united and focused illegitimate purpose of undermining the fundamental fairness of what is now a death penalty prosecution. Those corrupt law enforcement officers may be called to testify about substantive and central issues in the Holmes trial. If, in addition to being corrupt, they also committed perjury when called to testify in the fact finding hearing in 4 Colorado, their credibility is obviously deeply compromised and the defendant’s right to a fair trial could be severely undermined. The defendant, the People of the State of Colorado, and the victims and their families all deserve to have a full and fair trial, once and for all. As noted in the Amicus Brief at page 11 and by Judge Samour, the trial judge hearing the James Holmes case in Colorado stated3, the contents of the Holmes notebook “may well prove to be a critical piece of evidence in this case. [...] Of course, the more significant any admissible contents of the notebook are, the more significant the credibility of one or more of the [detectives who denied releasing the notebook] is likely to be at trial." Id. Therefore, in this death penalty case, the credibility of a corrupt law enforcement officer who leaked this crucial evidence to the press is central to the defense. This is the context of this case. We are able to report that by the time this appeal is heard, Fox News Reporter Winter will have already done precisely what the subpoena required by appearing three times in the Colorado Court, subject to the subpoena which the New York Supreme Court issued, without any apparent 3 See Order Regarding Jana Winter s Second Ripeness Contention Raised in Support of Her Motion to Quash Subpoena and for Protective Order (C-26(a)), signed on April 8, 2013, People v. James E. Holmes, Case No. 12CR1522 (Colo. Dist. Ct. Arap. Cnty filed July 20, 2012), available at http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18th_ Courts/12CR1522/004/C-53%2009%2003%2013.pdf 5 ill effect. Winter’s overwrought proclamation of doom which she contends in her brief will attend her appearance in Colorado is nothing more than predictable fact spinning based only on speculation. Moreover, she has already subjected herself to the jurisdiction of the Colorado Court and has filed a motion on March 28, 2013 seeking the exact same relief from the Colorado Court that she is seeking in this appeal. Winter made her choice and she should not now be seeking relief from this Court when she has already asked the Colorado Court to resolve these very issues. In fact, Winter’s gloomy suggestion that her career will be derailed by complying with the subpoena is more baseless speculation based, again, on nothing but air. As will be discussed below, the opposite is far more likely. Many journalists who have complied with their legal duty to appear as witnesses subject to subpoenas have gone on to have spectacular careers… some at Fox News! As a Fox News reporter in New York, we might have expected that Winter’s brief would, as it does, describe the New York Journalist Shield protections hyperbolically as “robust”, “absolute”, “muscular”, “strong” and “sacrosanct”. But whatever colorful adjective she chooses to describe the protections that the State Legislature has elected to provide to journalists working in New York, in Civil Rights Law § 79-h, she does not possess and 6 cannot describe any immunity from subpoenas derived from the Civil Rights law or any other state law applicable to journalists, or to any other person, who are required to appear as a witness in another state pursuant to CPL 640.10. Our legislature was free to -- and remains free -- to establish a special class of subpoena-immune citizens who could be relieved of any duty to comply with a subpoena from another state. To date, they have chosen not to exempt journalists or anyone from such subpoenas. Indeed, if the Court in New York was to unilaterally decide that one class of citizens is immune from being subpoenaed to another state, we could expect that other states could likewise define safe no-subpoena-zones for various types of citizens that they particularly cherish: oilmen in Texas, movie stars in California, gamblers in Nevada, socialists in Vermont… the list could go on. Winter would have this court establish, for the first time, that journalists based in New York, unlike any other citizen, are not subject to appearing in courts of sister states pursuant to the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, a law which has been adopted by every single state, the District of Colombia, the U.S. Virgin Islands, the Commonwealth of Puerto Rico and the Navajo 7 Nation. Such remarkably special treatment has been declined by our legislature and should therefore be declined by this Court. In light of the fact that Winter was in Colorado (See Appellant’s brief page 42 - 43) at the time that she obtained the material which is the subject of the subpoena and about which she reported from Colorado, it is startling for her to now suggest that despite the fact that she engaged in her conduct in Colorado, she nonetheless believes that she can thereafter retreat to New York and then claim absolute immunity from compulsory process (although even New York’s journalist shield statute does not afford that protection). Winter has used her retreat as an opportunity to seek from this court what she has already sought from the Colorado Court. As will be discussed below, on March 28, 2013, Winter appeared through counsel in Colorado and filed papers seeking the same relief from Colorado that she is seeking here. This case is not complicated. It does not require new ground to be tilled. But it is very important. The public policy of New York, as expressed by the Legislature’s enactment of CPL 640.10, is to comply with proper requests from sister states for subpoenas in criminal proceedings. Yet Winter believes that journalists should be elevated above all other citizens by being absolved from the duty to appear to give testimony. It is a view which stands 8 on its head the values on which our system is founded. In a nutshell she is saying, “Don’t make me go to Colorado to give testimony because I am afraid it might hurt my career.” Her view was summarized expertly and succinctly by her able counsel at the Appellate Division oral argument. He was asked, “Are you telling us that here in New York, we value the Journalist Shield more than we do the fundamental right to a fair trial?” Without hesitation, he answered, “Yes.” QUESTIONS PRESENTED 1) DID THE APPELLATE DIVISION ERR IN APPLYING THE CLEAR AND UNEQUIVOCAL HOLDING IN MATTER OF CODEY V. CAPITAL CITIES AMERICAN BROADCASTING CORP, 82 N.Y. 2d 521 (1993) THAT THE APPLICATION OF JOURNALIST SHIELD LAWS AND THEIR FOUNDATIONAL POLICIES ARE IRRELEVANT TO THE SENDING COURT’S DECISION TO ISSUE A SUBPOENA UNDER CPL 640.10, THE UNIFORM ACT TO SECURE THE ATTENDANCE OF WITNESSES FROM WITHOUT THE STATE IN CRIMINAL CASES ? 2) DOES CIVIL RIGHTS LAW § 79-h ESTABLISH A SPECIAL CLASS OF CITIZENS WHO ARE NOT SUBJECT TO BEING DIRECTED TO APPEAR IN OTHER STATES’ CRIMINAL PROCEEDINGS PURSUANT TO CPL 640.10? 3) IN LIGHT OF THE FACT THAT WINTER IS ALREADY LITIGATING HER PRIVILIGE CLAIM IN COLORADO, DO HER HYPERBOLIC CLAIMS THAT HER CAREER WILL BE DESTROYED IF SHE MUST LITIGATE HER CLAIMS OF PRIVILEGE IN THE DEMANDING 9 STATE CONSTITUTE “UNDUE HARDSHIP” WITHIN THE MEANING OF CPL 640.10(2)? ARGUMENT I. UNDER CPL 640.10, THE APPLICATION OF JOURNALIST SHIELD LAWS AND THEIR FOUNDATIONAL POLICIES ARE IRRELEVANT TO THE SENDING COURT’S DECISION TO ISSUE A SUBPOENA. Citizens may not hide behind alleged constitutional protections in order to eschew their obligation to give testimony in criminal matters. See New York v. O’Neill, 359 U.S. 1, 5, 79 S. Ct. 564, 569 (1959)(one’s obligation to give testimony in a case trumps one’s constitutional right to freedom of travel between states); see also Branzburg v. Hayes, 408 U.S. 665, 708, 92 S. Ct. 2646, 2670 (1972)(neither the constitutional right to freedom of the press nor any other constitutional provision protects a reporter from being compelled to testify in a proceeding regarding information received in confidence related to criminal activity). Additionally, a criminally accused holds a constitutional right to produce witnesses, by compulsory process through the authority of the state or federal government if necessary. U.S. Const. Amends. VI, XIV; Colo. Const. Art. 2 § 16, 25. In this State, Civil Rights Law § 12 provides a statutory right to compulsory process while Criminal Procedure Law 60.15 gives a criminal defendant the right to call witnesses and examine witnesses. 10 The purpose of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Cases (“the Uniform Act”) is to allow a party in a criminal proceeding to obtain the physical presence of a witness or evidence located in another state. Matter of Codey v. Capital Cities, American Broadcasting Corp., Inc., 82 N.Y.2d 521, 526, 605 N.Y.S.2d 661, 665 (1993). A state has “immediate personal jurisdiction over [a person] by virtue of his presence within that State.” O’Neill, 359 U.S. at 8-9, 79 S. Ct. at 570. The witness’ physical presence in the sending state confers upon it the constitutional jurisdiction to order that witness to testify in the receiving state. The Uniform Act promotes comity among the states within the federal union and prevents a witness from shirking his duty to testify in criminal proceedings by removing himself to a different jurisdiction. Codey, 82 N.Y.2d at 526. Indeed, Subdivision 5 of the Uniform Act, codified in New York in CPL 640.10, provides: “This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it.” People v. McCartney, 38 N.Y.2d 618, 621, n.3 (1976). Winter’s central argument is that the trial court and the Appellate Division erred by not considering New York’s Journalist Shield Law in the decision to issue the out of state subpoena. She is simply wrong. This is far 11 from a novel argument, the issue having been firmly decided, on facts very similar to the instant ones, by this Court in Codey, supra. Winter’s central argument therefore presents “no questions the fundamental underlying principles of which have not already been declared” by the Court of Appeals. Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 715, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980). For this reason alone, the Appellate Division First Department’s holding should be simply affirmed. Indeed, the Court put the issue to rest in Codey: We conclude that the Appellate Division's decision to consider the privileged nature of the evidence sought in the New Jersey proceeding was error. […] It would be inefficient and inconsistent with the over-all purpose and design of this reciprocal statutory scheme to permit the sending State's courts to resolve questions of privilege on a CPL 640.10 (2) application. The purpose of the Uniform Act was to establish a simple and consistent method for compelling the attendance of out-of-State witnesses (see generally, [Bellacosa, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 640.10,] at 306). This goal would be frustrated if the CPL 640.10 (2) hearings conducted by the sending State were to become forums for the litigation of questions of admissibility and evidentiary privilege, most of which will inevitably have to be litigated again anyway during the course of the demanding State's criminal proceeding. Further, evidentiary questions such as privilege are best resolved in the State--and in the proceeding-in which the evidence is to be used. […] In view of the sensitivity of privilege issues to local policy concerns and particularized legal rules, it would make little sense to construe CPL 640.10 (2) as authorizing the courts of 12 this State to determine questions of privilege that arise out of the law of another jurisdiction and which relate to specific criminal proceedings pending in that other jurisdiction. In these circumstances, the courts of the demanding jurisdiction are better qualified, both because of their superior familiarity with local law and because of their direct access to the parties or the facts in the underlying controversy (see generally, Restatement [Second] of Conflict of Laws § 139 [generally, questions of inadmissibility due to privilege are determined by law of forum State]). Codey, 82 N.Y.2d 529-30. Under the Uniform Act and pursuant to Codey, the sending state is neither required to, nor should it, balance public policies of other statutes against those underlying the Uniform Act. Indeed, this Court has already held that to do so, on these facts, is clear error. In this case, the Appellate Division understood the crystal clear admonition in Codey quoted above, that it was error to weigh issues surrounding journalist shield privileges when determining the materiality of the testimony and evidence sought by the requesting state. Remarkably, the very case upon which Winter erroneously relies for her argument that the trial court must balance these issues, addressed this specific factual scenario. Winter’s efforts to distinguish the facts of Codey from the facts at issue in this case are unavailing. The facts could scarcely be closer. In Codey, the information sought from the American Broadcasting Company by the out of state subpoena, as in this case, was “gleaned from 13 confidential sources.” Id. at 524. Those confidential materials included notes of interviews and outtakes of video interviews conducted by ABC World News Tonight correspondent Armen Keteyianof NC State basketball player Kelsey Weems. See In re Application of Codey, 183 A.D.2d 126, 128(1st Dept. 1992). At the time the material was broadcast, by prior agreement, the identity of the source had been obscured. When material is “obtained or received in confidence,” said material is considered “confidential” within the meaning of Civil Rights Law § 79-h(b).4 That subsection provides for “absolute” protection for a journalist from being required to testify concerning “confidential” material in New York. The material sought by the 4 Section 79-h(b) provides: “(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any news obtained or received in confidence or the identity of the source of any such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.” 14 State of New Jersey had not been disclosed on the broadcast and had been received in confidence by Mr. Keteyeian and so it was still “confidential” at the time it was sought by New Jersey. Importantly, as Winter well knows, the Civil Rights Law provides that the privilege may only be waived by the professional journalist or newscaster who is entitled to claim it under Civil Rights Law § 79-h [g].5 The privilege belongs to the journalist who received the information so it may only be waived by her. It cannot be waived by the confidential source. Knowing these facts, Winter persists in vainly trying to distinguish the facts of Codey from those in the instant case by stating ipsi dixit that the material sought in Codey was not confidential material. See Appellant’s Br. 21. Winter should know this is just not true. And ABC also knew it wasn’t true. That is, of course, why they opposed releasing the material on grounds it was confidential. Further, in Codey, as is the case here, the New Jersey Shield law differed from the New York Shield Law as it did not provide for absolute protection of confidential sources. Codey, 82 N.Y.2d at 530. 5 Section 79-h(g) provides: “(g) Notwithstanding the provisions of this section, a person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption if such person voluntarily discloses or consents to disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.” 15 Despite the complete overlap of the seminal facts, Winter would have this court blink at this stare decisis and instead resolve this matter pursuant to footnote 3 in Codey which held open the theoretical possibility that, on facts different than those presented by Codey and this case, “the possibility that in some future case a strong public policy” could “justify the refusal of relief” under the Uniform Act. There is no hint what the facts of that future case might be. Yet, the facts of Codey and of this case do not constitute that “future case.” The Codey decision and its factual underpinnings repudiate any argument that this case falls within footnote 3. II. CIVIL RIGHTS LAW § 79-h DOES NOT ESTABLISH ANY SPECIAL CLASS OF CITIZENS WHO ARE IMMUNE FROM BEING DIRECTED TO APPEAR IN OTHER STATES’ CRIMINAL PROCEEDINGS PURSUANT TO CPL 640.10. Winter contends that some unarticulated public policy buried seamlessly and without mention in the interstitial space of the language of Civil Rights Law § 79-h eliminates the obligation of reporters to respond to the clear mandates of another statute, CPL 640.10. There is, of course, no such public policy and her efforts to conjure one are doomed to failure. The public policy of New York is not unearthed by alchemy. It is created organically and purposefully by the Legislature. For more than a century this Court has been clear and unambiguous in expressing what public policy is in 16 the juridical sense. In People v. Hawkins, 157 N.Y. 1 (1899), the Court held that: The term “public policy” is frequently used in a very vague, loose or inaccurate sense. The courts have often found it necessary to define its juridical meaning, and have held that a state can have no public policy except what is to be found in its Constitution and laws. Therefore, when we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records, so that the inquiry is whether the provision of the Constitution above cited forbids the sale of prison-made goods to the general public. Either it does or does not. If it does not, there is an end of the argument on that point. If it does, we will see hereafter how it affects the validity of this statute. Id. at 12 (citations omitted). By applying the Hawkins rubric, it easily seen that despite Winter’s heartfelt wishes, neither the Constitution nor any legislative product includes any provision which would treat reporters differently from lawyers, judges or politicians were they subpoenaed to appear in a sister state’s criminal case. A person so subpoenaed might well be in a position to respond to it by expressing what she reasonably believes to be a privilege to refuse to answer questions in the sister state’s jurisdiction. Yet the subpoena’s recipient will still be compelled to appear in that sister jurisdiction and at that time raise their issue of privilege. Indeed, even a person seized of a Federal Constitutional right (arguably more protected and without any statutory 17 exception) such as a Fifth Amendment right to refuse to answer questions will nonetheless be compelled to appear in a sister state’s jurisdiction to invoke that constitutional right if they are subpoenaed pursuant to CPL 640.10. “The privilege is a matter to be ruled on by the court conducting the trial. In re Pitman, 201 N.Y.S.2d 1000, 1002 (N.Y. Gen. Sess. 1960) (where New York witness was compelled to appear in New Jersey criminal prosecution, questions about his privilege against self-incrimination would have to be determined in the New Jersey court, not in the New York court issuing the order).” Tracy v. Superior Court, 168 Ariz. 23, 810 P.2d 1030 (Ariz. 1991). Hawkins explains that we are to credit the forethought and attention to consequences of the drafters of the Constitution and by extension legislation promulgated pursuant to that Constitution. The drafters had the ability to say what they mean: If the framers of the Constitution intended to forbid the sale of prison-made goods to the general public, or to prohibit dealing in them, it was an easy matter to say so in terms that could not be misunderstood. Surely, the poverty of our language is not such as to preclude the framers of the fundamental law from giving plain and direct expression to such a simple thought. Id. at 12-13. Accordingly, the “plain and direct expression” of law contained in CPL 640.10 should dispel any notion that there exists some unstated, 18 unwritten yet deeply held belief that reporters should be exempted from the reach of the statute. Indeed, “there can be no public policy except what is to be found in [the] Constitution and laws.” Id. at 12. Anyone reading Civil Rights Law §79- h and CPL 640.10 will observe that there is no carve out for journalists who are subpoenaed to appear in other jurisdictions. The language is clear and unambiguous. Likewise, our Constitution is silent on the matter. Presumably the legislature could have done so, but they have not and Winter knows that wishing does not make it so. Our legislature made choices in establishing the New York Journalist Shield Law for journalists practicing their craft in New York. The myriad legislative choices which resulted in Civil Rights Law §79-h are entitled to respect and deference. Neither Winter nor the Courts are free to read intent, meaning, reach, or breadth which were not clearly articulated by the legislature. “Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice[.]” Rodriguez v. United States, 480 U.S. 522, 525-26 (1987). The public policy of New York as articulated in Civil Rights Law §79- h is that no New York court can compel a reporter to testify about confidential sources when subpoenaed to give evidence in a New York court. 19 The Legislature did not purport to forbid our courts from compelling reporters to respond to subpoenas from other states. That is what this Court in Beach v. Shanley, 62 N.Y.2d 241, 465 N.E.2d 304, 476 N.Y.S.2d 765 (1984) clearly held. In Beach, a New York Grand Jury issued a subpoena to a New York reporter related to activity engaged in by that reporter in New York. Both the dissent belowin this case and Winter in her brief conveniently disregard the fact that the application of the New York Civil Rights Law §79-h is limited to the activity of reporters carrying out their activities in New York. Beach instructs that: New York first adopted a Shield Law 14 years ago (L 1970, ch 615). In approving the legislation, Governor Rockefeller stated: “The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication. Id. at 249 (emphasis added). And further, in Judge Wachtler’s concurrence in Beach, he explained that the New York journalist shield law provides protection to reporters within New York state from “[s]tate investigators or investigative bodies, irrespective of any privileges granted by the Legislature now or in the future.” Id. at 256 (emphasis added). 20 It bears recognizing and emphasizing that, as Winter has stressed in her Brief to this Court, the information she obtained from confidential sources in Colorado was accomplished not while she sat at her desk in New York. Rather, as she freely admits, Winter was in Colorado when she collected that confidential information. See Appellant’s brief page 42 - 43. She was therefore certainly subject to the laws of the jurisdiction in which she was located when she obtained her information. Her conduct while in another state’s jurisdiction will and must be judged by that state’s laws. In so far as a Journalist’s Privilege exists, it is merely a creature of statute. As such, the privilege exists in accordance with statutory requirements and the statute involved is that of the state where the action is tried. See Conn. Mut. L. Ins. Co. v. Union Trust Co., 112 U.S. 250, 253-256, 5 S. Ct. 119, 28 L. Ed. 708 (1884). Winter, like all Americans, will enjoy the legal rights and privileges of whatever jurisdiction in which she elects to work. The nationwide (or even worldwide) nature of news gathering does not exempt journalists from the jurisdiction and laws of the states in which they operate. Lawyers who practice in sister states are bound by the practice rules of the sister states when they are there. Many professions engage in activities which cross state lines and when they do that, they are bound by the state and Federal rules 21 which govern their behavior where they practice…not just where they live or have offices. Nowhere in Winter’s argument is there an acknowledgement of the importance and centrality of CPL 640.10. Yet, without it, no state would be able to carry on its criminal trials. The fundamental Constitutional right of defendants given to them by the Sixth Amendment of the United States Constitution and held applicable to the States through the due process clause of the Fourteenth Amendment, See Washington v Texas, 388 U.S. 14, 17-19 (1967), would be rendered meaningless; the right to compel the attendance of witnesses at criminal trials would crumble and witnesses would soon learn that they can simply hide out in states which do not apply the clear requirements of the Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Cases. No state procedural rule and certainly no abstract unarticulated claim of public policy may operate to deprive a defendant of his constitutional right to due process. See Chambers v Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). The Supreme Court has explained the ameliorative purpose of this essential interstate compact. In New York v. O'Neill, 359 U.S. 1 (1959) the Court instructed that: The primary purpose of this Act [“Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in 22 Criminal Proceedings.”] is not eleemosynary. It serves a self- protective function for each of the enacting States. Id. at 9. Without the Uniform Act, no state could count on being able to compel material and necessary witnesses to appear for criminal cases. As much as Winter protests that journalism is a nationwide occupation, the same may be said of the reach of criminal trials. Criminal trials are frequently not local affairs. With the ease of travel and the means of cross state communication, it is common to require the presence of out of state witnesses in criminal trials. Today every state, Puerto Rico, the Virgin Islands and The Navajo Nation have implemented the Uniform Act. As the Supreme Court said, “This is not a merely altruistic, disinterested enactment.” Id. Winter argues that comity should take a back seat to her personal claim of hardship. The Supreme Court explained the importance of the uniform application of the Uniform Act: To yield to this argument would foreclose to the States virtually all arrangements which increase comity among the States. These extra-constitutional arrangements are designed to solve "problems created by a constitutional division of powers without disturbance of the federal nature of our government." Clark, Joint Activity Between Federal and State Officials, 51 Pol. Sci. Q. 230, 269. […] By reciprocal, voluntary legislation the States have invented methods to accomplish fruitful and unprohibited ends. A citizen cannot shirk his duty, no matter how inconvenienced thereby, to 23 testify in criminal proceedings and grand jury investigations in a State where he is found. There is no constitutional provision granting him relief from this obligation to testify even though he must travel to another State to do so. Comity among States, an end particularly to be cherished when the object is enforcement of internal criminal laws, is not to be defeated by an a priori restrictive view of state power. Id. at 9-11. CPL 640.10 serves the overarching stated interests of this state and every state. The public policy of New York, as expressed in that law, is to promote the reciprocal enforcement of criminal law across the United States. Carving out the exception sought by Winter will neither serve the interests of the signatory states (including this one) nor the Constitutional interests which CPL 640.10 serves to preserve. In People v. McCartney, 38 N.Y.2d 618 (1976), this Court had the opportunity to address the construction and application of CPL 640.10 (subd 3). The Court held that, “The ‘Uniform Act’ is a reciprocal act and is operative only among States which have adopted it. Section 5 of the act (CPL 640.10, subd 5) emphasizes that, as a uniform act, it should be applied uniformly in the jurisdictions in which it has been adopted.” Id. at 621 (emphasis added). Indeed, the Uniform Act explicitly provides that it “shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of the states which enact it." CPL 640.10 (subd 5). 24 Winter would have this Court carve out an exception for reporters. To create such an exception would violate the express public policy of the Uniform Act by contradicting its stated purpose. She suggests that it is more beneficent and more consistent to graft an undeclared public policy onto the clear language of CPL 640.10 than it is to recognize the value of comity between the states. In Debra H. v Janice R., 14 N.Y.3d 576 (2010), this Court explained that, the doctrine of comity does not of its own force compel a particular course of action. Rather, it is an expression of one State's entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantage in some future case in which the interests of the forum are more critical. Id. at 600. None of the cases Winter relied upon to argue that New York public policy should trump comity are relevant to the current matter. None of those cases involve a legislative mandate to afford comity to a sister state like that embodied in CPL 640.10. And none of those cases address the type of 25 significant sister-state interest of enforcing state and federal constitutional rights guaranteed to defendants in criminal cases.6 Rather, the question in Ehrlich-Bober & Co. v University of Houston, 49 N.Y.2d 574, 404 N.E.2d 726, 427 N.Y.S.2d 604 (1980), Winter’s central supporting case, was whether a Texas statute limiting venue in suits against its own University for mere administrative convenience should give way where the wholly commercial transaction at issue was centered in New York. This is in direct contrast to the facts here as Winter’s conduct was centered in Colorado by her own admissions. Significantly, while the Ehrlich-Bober Court rejected the Texas statute in favor of allowing the civil suit to proceed in the New York Courts, it noted that it may be appropriate, as in this case, “to defer to the assertion of interest by another jurisdiction where the interest in question goes to the very heart of the governmental function.” 49 N.Y.2d at 581(emphasis added). Here, the New York Legislature codified the doctrine of comity within CPL 640.10 requiring New York Courts to issue subpoenas where the parties in the requesting state have met the elements listed in the statute. 6 Banco Nacional de Mexico, S.A. v. Societe Generale, 34 A.D.3d 124, 130 (1st Dep’t 2006) cited by Winter, also involves a factual scenario far afield from Mr. Holmes out of state subpoena request. Central to the Banco Nacional decision was that the agreement in question contained an explicit choice of law clause selecting New York exclusively. 26 Moreover, the interest at stake in the requesting state is indeed central to the government’s state and federal constitutional mandate to guarantee a criminal defendant’s right to compulsory process. 7 When a party to an agreement unilaterally decides to change the terms, the entire agreement collapses. Every state in the Union is a party to the Uniform Act and all have a compelling interest in its viability. There are no carve outs for unhappy journalists in CPL 640.10 and there is no provision in Civil Rights Law § 79-h exempting journalists from complying with CPL 640.10. Winter should return to Colorado where she was when she collected the information which she published, where she will be subject to the laws of the State of Colorado and where she has already asserted such privileges as she may have there.8 Winter has, herself, already sought and received the jurisdiction of the Colorado Court to resolve her concerns. Her pending 7 Winter’s reliance on Curtis, Mallet-Prevost, Colt & Mosle, LLP v. Garza-Morales, 308 A.D.2d 261, 270 (1st Dep’t 2003) is similarly misplaced. Curtis involved an arbitration agreement between two New York parties regarding a relationship centered in New York, a situation far afield from the facts before this Court now. Since Winter’s activity took place in and was centered in Colorado, Curtis would support this issue being resolved in Colorado. 8 Winter’s Statement Regarding The Status of Related Litigation attached to her brief in this matter refers the court to the Colorado Judge’s Order relating to her Motion to Quash filed in Colorado. Winter’s brief filed in Colorado requesting the same remedy she seeks here can be found at: http://www.courts.state.co.us/userfiles/file/Court_Probation/18th_Judicial_District/18t h_Courts/12CR1522/002/2013-03- 28%20Motion%20for%20Protective%20Order%20and%20to%20Quash%20Subpoen a%20Duces%20Tecum%20and%20Ad%20Testificandum.pdf 27 motion in Colorado, filed on March 28, 2013, asks the Colorado Court to resolve her Journalist Shield issues. And, as Codey holds, that is precisely the right place to resolve those issues. III. THE TRIAL COURT’S FINDING THAT WINTER FAILED TO SHOW SHE WOULD SUFFER “UNDUE HARDSHIP” WITHIN THE MEANING OF CPL 640.10 WAS CORRECT AND WELL WITHIN THE DISCRETION OF THE SUPREME COURT AS CONSIDERATIONS OF PRIVILEGE ARE IRRELEVANT TO THAT DETERMINATION AND WINTER’S REPEATED APPEARANCES IN COLORADO HAVE NOT CAUSED HER ANY HARDSHIP. CPL 640.10, subd. 2 says, in pertinent part, that if a judge “determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify” in the demanding state, then he shall issue a subpoena. CPL 640.10(2)). In Codey, this Court held that “privileged status of evidence is not a proper factor for consideration under CPL 640.10(2).”. 82 N.Y.2d at 524. Winter’s claim of privileged status does not provide her a basis for a claim of undue hardship. By the time this appeal is heard, Winter will have appeared in Colorado three times in compliance with the subpoena issued by Judge Larry Stephen in New York County Supreme Court. Winter insisted, and the Public Defender of Colorado agreed, consistent with the orders of that court to pay for her travel, hotel and incidentals for her first two trips. Winter has 28 not claimed any hardship based on her travel to and from Colorado and she has likewise not claimed any damage in her work life or to her career as a consequence of that travel. Winter describes in her affidavit a litany of imagined potential ills which may befall her if she goes to Colorado. R. 335. Yet, she has gone three times and survived each trip unscathed. Indeed, she attempts to analogize herself to the polygrapher in Michigan discussed in a minimally applicable case, People v. Marcy, 91 Mich. App. 399 (Mich. Ct. App. 1979). In Marcy the court did not reject the out of state subpoena of the polygrapher based on hardship as Winter wrongly implies. In fact, the Michigan Court determined that the witness was not a material and necessary witness. 91 Mich. App. at 407. The Court of Appeals in Michigan upheld the lower court’s decision in large part because, unlike Winter, the witness’s testimony was protected by attorney-client privilege in both the requesting and the sending states. Id. Furthermore, the analysis set forth in Marcy was cited by the Appellate Division of the Supreme Court in Application of Codey, 183 A.D.2d at 131 and then explicitly rejected by the New York Court of Appeals in Codey, 82 N.Y.2d 521 (1993). The affidavit of her expert, Mark Feldstein, submitted below, R. 344, sheds no additional light on the reality of any hardship. Initially, it is 29 important to note that the entire first point of Mr. Feldstein’s various assumptions relate to his opinion that there were “thousands of contemporaneous news reports concerning the mass shooting…” R. 345. While there were indeed many news reports, he neglects to observe that there was only one which was entitled “EXCLUSIVE - Movie Massacre Suspect Sent Chilling Notebook to Psychiatrist Before Attack.” R. 342. In fact, he misstates the actual title of the article Winter published by failing to include the word “EXCLUSIVE” from the title. Words matter. That word was important because it established Winter’s article as the first revelation of the contents of the recovered writings which were sourced to law enforcement personnel. Indeed, none of the other articles in the record describe the contents of the writings as having been revealed to them by law enforcement personnel. See R. 405- 635. Many of the articles establish that other news outlets report that law enforcement personnel had described the contents of the writings, but only one, Winter’s, is “EXCLUSIVE.” And she alone acknowledges that her source was law enforcement. R. 342. On the issue of hardship, Mr. Feldstein provides nothing but unfounded speculation that Winter’s testimony in Colorado will produce any ill effect on her. He is unable to identify even one example of any journalist ever having suffered any hardship based on having revealed a 30 source. His entire opinion is based on only one academic study which itself does not identify any single journalist who has suffered professional hardship by virtue of having testified in court. The entirety of his hardship argument is that “nearly one third of news room leaders believe that sources are somewhat or much less willing to speak on condition of confidentiality with reporters at their organizations than they were five years ago.” R. 356. He also points out that “7.7% of those same news room leaders believe that sources are more willing to speak on condition of confidentiality.” R. 357. The math would therefore indicate that two thirds of news room leaders believe that sources are currently as willing or more willing to speak on condition of confidentiality to reporters than they were five years ago. This is hardly a stunning indictment of the hardship caused by subpoenas issued to reporters. Feldstein’s statement is plainly insufficient to demonstrate that reporters have suffered hardships or that Winter will suffer hardship as a result of being subpoenaed. In any event, the hardship he discusses associated with one academic study is related to the issuance of a subpoena vel non which is completely different from the particular hardship claimed by Winter which, as she describes it, is specific to what might happen to her career if she reveals a source. 31 But Feldstein has even less to say about the factual or empirical basis of his crystal ball claim that, “If Winter reveals the identity of her confidential sources, that could mean the end of her career as an investigative journalist.” That’s it... ipsi dixit. A “highly mobile news organization” can scarcely claim hardship associated with travelling to another jurisdiction. Codey 82 N.Y. 2d at 531. Moreover, this case, as the Appellate Division correctly pointed out, is not about what testimony Winter may or may not give when she goes to Colorado. It is about whether she can be compelled to go to Colorado to assert her claims there. Matter of Holmes v Winter, 970 N.Y.S.2d 766, __, 2013 N.Y. App. Div. LEXIS 5585 *6-7 (1st Dept. Aug. 20, 2013)(“privilege is irrelevant to this Court’s determination since admissibility and privilege remain within the purview of the demanding State rather than the sending State.”) Of course, that has already happened… three times…with no ill effect. 32 A. Reporters Who Testify Do Not Experience Hardship No Matter How it is Defined The entirety of Winter’s novel claim of hardship, is based on her unfounded speculation, not based on a single actual fact, that it might be possible at some unidentified point in the future, that some as-of-yet- unknown and never-to-be-known potential source, may decide not to disclose information to her if, after she appears in Colorado to give testimony, she decides to do so. Nowhere in Winter’s affidavit, in her brief, in the affidavit of her expert nor in the amicus brief filed in her support is there supplied even one example of a reporter actually experiencing the hardship described, or any hardship, when they do elect to testify. Apparently, the sky simply does not fall. The Amicus brief filed in this matter identifies a series of reporters who have gamely resisted subpoenas by claiming the protection of the Journalist Shield. Some of those reporters who worked in New York were subpoenaed in New York and claimed the protection of the journalist shield here. Others who did their work in other jurisdictions were subpoenaed in other jurisdictions and claimed the protection of whatever journalist shield protections were in place in those jurisdictions. None of the long list of reporters noted in the Amicus’ brief describe reporters who, like Winter, have conducted their activities in another jurisdiction and then retreated to 33 New York to claim the protection of the New York Journalist Shield. Even the oft cited, see Amicus Brief at page 4, and much revered John Peter Zenger in 1735 was a New York based publisher who published in New York and was subpoenaed and refused to testify in New York. As we discussed above, the Civil Rights Law § 79-h [g] provides that the privilege may only be waived by the professional journalist or newscaster who is entitled to claim it. The privilege belongs to the journalist who received the information so it may only be waived by her. It cannot be waived by the confidential source. But many reporters do end up deciding to testify. They do so for a variety of reasons. Some elect to testify after the identity of their source becomes public, sometimes by the source themselves and sometimes after being importuned by the reporter or others to release the reporter from their promise of confidentiality and sometimes by other means. Sometimes reporters testify after receiving subpoenas for material they have received or notes they have generated or recordings or video they have created. But whatever reason they decide to do so, one might presume that the career-ending hardships which the Amicus and Winter speculate will certainly occur when a reporter testifies, would happen with some frequency. It would therefore be useful to determine what “hardship” is experienced by those reporters who do elect to testify. The expected 34 response, that no hardship will befall a testifying reporter whose source “relieves them of their promise of confidentiality” is specious. It ignores the coercive effect of a subpoenaed reporter pleading directly or indirectly for a release from their source. If future potential sources are going to be dissuaded from providing information when a reporter is compelled to testify and does, they will also be dissuaded from providing confidential information knowing that they may be pressured by a subpoenaed reporter or her lawyer to be relieved of the promise of confidentiality. Obviously, the universe of examples of testifying reporters is much greater than what can be gleaned from reported cases. The numbers of reporters who receive subpoenas and simply testify without any attendant litigation is not known since no records are available. The Amicus Brief filed in this matter describes a number of reporters who have used confidential sources to generate news stories. They describe some reporters’ opinions of the calamity which will befall the reporting profession and the individual reporters’ career in particular should a court compel a reporter in any circumstance to reveal a source. One of the high profile reporters quoted by the Amicus is Washington Post reporter Walter Pincus. Mr. Pincus is quoted in the Amicus brief for the notion that the Journalist Shield is important. See, Amicus Brief at page 21. But what is not 35 quoted is Mr. Pincus’s explanation made to Jeffrey Toobin in a New Yorker article of why he did ultimately gave a deposition “with little fanfare” in the Valerie Plame investigation to Special Counsel Fitzgerald in September 2004 and later he testified to the identity of his source in court. “A lot of reporters are egomaniacs,” Pincus said. “Some people want a confrontation. They want us to be above the law. We’re not.”9 Far from being reviled or having his career destroyed for testifying, Pincus won the Arthur Ross Media Award from the American Academy for Diplomacy in 2010.10 Pincus rebutted the idea of the so-called “chilling effect” of subpoenas on journalists: “Pincus has an idiosyncratic view of his legal predicament. He’s skeptical of the notion that subpoenas to journalists necessarily have a chilling effect on sources. ‘My sources are not drying up,’ he told me. ‘It hasn’t hurt me.’” Id. So much for hardship. Mr. Pincus wrote again, more recently in the Washington Post about the Associated Press printing of a leak of secret national security information related to an Al-Qaida plot which seriously undermined national security interests. Expressing his continued skepticism that there are any sources dissuaded from carrying out their myopic vision of what should be public, 9 Jeffrey Toobin, “Annals of Law: Name That Source” (The New Yorker, July 16, 2006) 10 http://www.academyofdiplomacy.org/awards/2010_Ross_Award.html 36 despite the terrible harm that may be visited on individuals’ or the country’s interests, he wrote: 11 But how many times can the media claim such an action is “chilling sources?” That was a claim during the Valerie Plame case under the Bush administration and repeatedly invoked as the Obama Justice Department has pursued leakers. The risk of breaking the law apparently didn’t chill those who leaked the information to the AP. That’s what should be considered chilling. The reality is that this is not a whistleblowing case. There are no heroes here, and the press in this instance was not protecting individuals trying to expose government malfeasance. Likewise, in this case, there are no whistleblowers and there are no heroes. The leakers in this caseare corrupt law enforcement officers who purposefully violated a court order in order to undermine a defendant’s right to a fair trial. In a death penalty case, that is indeed chilling. There is no “greater good” against which to measure the behavior of those corrupt law enforcement officers. Also in the Valerie Plame investigation, Judith Miller was subpoenaed to testify about who had disclosed to her the identity of a covert CIA operative. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 370 U.S. App. D.C. 4 (D.C. Cir. 2006). She initially refused and served 85 11 Walter Pincus, The Washington Post, “Fine Print: The press and national security” May 20, 2013 37 days in jail before she testified after being relieved of her promise by her once secret source. Was her career destroyed? The answer is no. After leaving the New York Times in 2005, Miller has continued to work in Manhattan as a contributor to the Wall Street Journal. She is now an adjunct fellow of the Manhattan Institute for Policy Research, a member of the Council on Foreign Relations and was hired by Winter’s employer, Fox News, in October 2008.12 Matthew Cooper, formerly of Time Magazine, was also subpoenaed at the same time as Judith Miller. Instead of refusing to testify, his lawyers called his source and got a “release of the commitment of confidentiality”.13 He then testified fully. How was his career affected after his lawyers called his source, obtained a release of his pledge of confidentiality and he fully testified? Cooper now works as the managing editor for White House coverage for National Journal magazine. He has previously worked as a blogger for Talking Points Memo, as a correspondent for The Atlantic and for the Financial Crisis Inquiry Commission.14 12 http://www.judithmiller.com/about/ 13 Adam Liptak, New York Times, July 7, 2005. “Reporter Jailed After Refusing to Name Source.” 14 http://observer.com/2010/08/washington-allstar-matt-cooper-joins-emnational- journalem-as-managing-editor/. 38 Other reporters who have testified, often reluctantly, have likewise not been subjected to hardship by having testified. In July 2003, three Chicago reporters, Abdon Pallasch and Robert Herguth of the Chicago Sun Times and Flynn McRoberts of the Chicago Tribune, were ordered by U.S. District Judge Ronald A. Guzman to hand over taped interviews with FBI informant David Rupert in the 2003 terrorism case against Michael McKevitt.15 See McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003). The reporters decided to comply, and handed over their tapes. Were their careers destroyed after complying with the subpoena? Pallasch made this decision four years into his 13-year career with the Times; in 2012, he became the Illinois State Budget Director after 25 years as a journalist.16 Herguth reported for the Times for a decade, is currently the Investigations Editor for the Better Government Association, and has worked as an adjunct professor at Loyola University Chicago since 2006.17 McRoberts was the deputy projects editor for the Chicago Tribune, and left the paper in 2009 to become the Chicago Bureau Chief of Bloomberg News. McRoberts has also directed several 15 Matt O’Connor, Chicago Tribune, July 4, 2003. “3 Reporters Lose Fight Over FBI Mole Tapes.” 16 CBS Chicago, ‘Sun-Times’ Pallasch to take over as Assistant Illinois Budget Director’ (July 23, 2012) 17 Herguth faculty bio from Loyola University Chicago: http://www.luc.edu/soc/Part- Time_Jrnl1.shtml 39 news-teams that have been Pulitzer finalists or winners.18 These reporters did not suffer undue hardship. There is no evidence provided in this record that Winter will either. CONCLUSION It is respectfully submitted that this Court can and should resolve this case with a simple affirmance. The Supreme Court in O’Neill explained the importance of fully enforcing the Uniform Act when it held: By reciprocal, voluntary legislation the States have invented methods to accomplish fruitful and unprohibited ends. A citizen cannot shirk his duty, no matter how inconvenienced thereby, to testify in criminal proceedings and grand jury investigations in a State where he is found. 359 U.S. at 11. The Uniform Act promotes comity among the states within the federal union and prevents a witness from hiding from compulsory process, thereby avoiding her duty to appear in criminal proceedings by removing herself to a different jurisdiction. Winter has removed herself from Colorado and sought refuge in New York which is exactly the sort of conduct which the Supreme Court proscribed and for which the Uniform Act provides a remedy. She should be compelled to continue appearing in Colorado, where she has 18 Flynn McRoberts bio from Bloomberg News: http://www.bloomberglink.com/people/flynn-mcroberts/ 40 already appeared and where she has already filed papers seeking the exact same relief from the Colorado Court that she is seeking here. If this Court elects to address the broader issues raised by Winter, we hope the opportunity will be taken to assure New Yorkers that, above all else, we are committed to our statutory obligations to all of the other states by virtue of the Uniform Act and to assure that all defendants, wherever they may be, are afforded their fundamental rights to compulsory process and a fair trial. Respectfully, ______________________________ Daniel N. Arshack Arshack, Hajek & Lehrman, PLLC 1790 Broadway, Suite 710 New York, New York 10019 ______________________________ Richard D. Willstatter Green & Willstatter 200 Mamaroneck Avenue, Suite 605 White Plains, New York 10601 Dated: September 26, 2013 /s/ Richard D. Willstatter /s/ Daniel N. Arshack