Lawyers for accused Colorado shooter to subpoena Fox News reporter

Mon Dec 10, 2012 9:24pm EST

(Repeats with improved headline)

By Keith Coffman

CENTENNIAL, Colo. Dec 10 (Reuters) - An attorney for accused Colorado theater gunman James Holmes said in court on Monday he will subpoena a Fox News reporter to reveal her source for a news story about the massacre, setting up a potential First Amendment showdown.

Public defender Daniel King said he plans to subpoena New York-based correspondent Jana Winter, who days after the July 20 rampage reported Holmes had sent a notebook to a psychiatrist detailing his plans to commit mass murder.

Holmes, a 24-year-old former neuroscience graduate student, is charged with multiple counts of murder and attempted murder for the shooting spree in the Denver suburb of Aurora, Colorado that killed 12 people and wounded 58.

King said the story, which cited an unnamed law enforcement source, violated a gag order imposed by Arapahoe County District Judge William Sylvester.

"We have not received a subpoena on Jana Winter's behalf and will evaluate once we do," a Fox News spokesperson told Reuters.

The psychiatrist, Lynne Fenton, is on staff at the University of Colorado, where she saw Holmes as a patient before he started the process to withdraw from the university before the massacre.

The move by King came after a court hearing in which more than a dozen law enforcement officers who saw the package containing the notebook in a university mail room denied under oath that they were the source of the leak.

On the night of the shooting, Holmes bought a ticket to the movie, but left the theater minutes into the film to put on tactical body armor and a gas mask. He returned to the theater and fired on the audience using several weapons, police have said.

In court on Monday, a bearded Holmes sat impassively throughout the hearing, shackled and dressed in maroon prison clothes.

Holmes' parents attended the legal proceeding, the first time they have been in court since their son's arrest. Holmes turns 25 on Dec. 13.

His lawyers are asking the judge to impose sanctions on prosecutors for the leaked information about the notebook.

Craig Silverman, a former Denver prosecutor now in private practice, said Holmes' lawyers are making an issue of the notebook in the hope that the judge take the death penalty off the table as a sanction against the prosecutors.

"There's a real danger that the sideshow is taking over the circus," said Silverman, who attended the hearing. (Additional reporting by Mary Slosson.; Editing by Mary Slosson and Christopher Wilson)

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