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Joining us now former prosecutor Dan -- Trial attorney -- -- right good to have you gentlemen with us and -- -- start with you.
But -- this this trial.
These this effort by this judge to get one of our reporters.
To me -- I think it would be any anyone who's ever been a reporter is -- how can this be a lot.
Well let's see what happens the defense is bringing emotion because they feel the judge's gag order was violated and a defense has to prove under Colorado law that there's a substantial issue to their defense that it overrides the First Amendment concerns.
Very unlikely they will succeed here it's not a crucial issue to their defense and we'll see -- the judge decides this case judge hasn't ruled yet.
-- what do you think.
Well I agree I think that if you lift up the hood you'll see that there's really no engine to the defense counsel counsel's argument here.
Really the only way that they can have a balancing that overrides the First Amendment is that they can clearly demonstrate that they have a specific need in this case.
They admitted general contention that it's going to make it hard for them to have a fair trial.
I think that they've done a bad job articulating that.
It was just an outrageous situation because although their client is apparently a mass -- that should be thrown in jail in much worse.
These defense attorneys are actually pointing to this fox reporter in saying that if she doesn't imply that she's the one that you go to jail so it really is an unbelievable situation you can't make this stuff up.
And the last summer saga -- -- Judith Miller -- -- at the time was working with the New York Times she spent 85 days in jail.
She has just written a column in which she says she's not optimistic.
-- -- -- will avoid.
-- -- mature you seemingly down are very optimistic -- -- well.
I'm not very optimistic I think under the law it's very clear that there is no substantial interested defense -- that -- does not override the First Amendment so she should avoid jail but you never know what -- judge is going to do so we have to wait and see obviously there would be an appeals process if she is ordered to go to jail but the First Amendment is so important we can't let it.
-- people people are gonna be afraid to talk to reporters if they see reportedly speak with go to jail if they don't reveal confidential source it's very dangerous.
Colorado has shield laws they would be overridden.
Is -- is saying.
And -- from everyone in the news businesses saying this would have a chilling effect that is absolutely unacceptable.
And you know what else out.
Dan since coming -- you never know what a judge is going to do what kind of business -- you guys and where you never know what the judge just got to do.
Well it is pretty unbelievable special in a situation like this where you.
Could really have a historic ruling.
I'll put a -- was her I would obviously not only not quite bright at all but I think that she has some procedural arguments I don't understand from a venue standpoint.
How this Colorado judge has the authority to order a reporter from New York.
To be dragged into court.
Over her constitutional objections so she's I think that she has a good argument on the substance but I think that there are some procedural arguments here.
That will also be a hurdle for the defense I don't see how Colorado court could take -- Colorado State subpoena.
And stuff it down someone's throat New York so if she could she could just say you know what.
Coming get me.
Well we're gonna.
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