James Holmes glances over an advisement as his defense attorney, Daniel King, turns the pages at a court hearing last June.
James Holmes glances over an advisement as his defense attorney, Daniel King, turns the pages at a court hearing last June. (Andy Cross, Denver Post file)

Lawyers for the Aurora movie theater gunman are taking their fight to subpoena a Fox News reporter to the U.S. Supreme Court.

A petition asking the nation's highest court to overturn a New York ruling blocking the subpoena was filed last week, said Daniel Arshack, the attorney who filed the petition on behalf of James Holmes. Arshack said the New York court erred by finding that state law there protects reporters such as Fox News' Jana Winter from having to reveal their sources.

Arshack said an interstate compact means the New York court shouldn't have applied a state law when deciding whether to order Winter to testify in Colorado, where Holmes' attorneys want to question her about a story she wrote on a notebook that Holmes mailed to his psychiatrist.

If the Supreme Court takes up the petition, it could further delay the trial in the theater shooting case, which is currently set for October.