Mixed Motives

Timesman Farber under fire

When New York Times Reporter Myron Farber, 40, was tossed into a New Jersey jail two and a half weeks ago for refusing to give his notes to a trial judge, the issue seemed reasonably clear-cut. As of last week, it proved to be anything but.

It was Farber's digging that led to the multiple-murder indictment of Dr. Mario Jascalevich, who is charged with injecting lethal doses of the muscle relaxant curare into three patients in a small suburban New Jersey hospital during 1965-66. The doctor's defense lawyer demanded to see Farber's notes, but Farber refused, citing the First Amendment and a New Jersey "shield" law that allows reporters the privilege of keeping their sources confidential. A New Jersey judge asked to see the notes in private, and Farber still refused. Off to jail he went, cited for contempt.

The Times backed "Our Man in Jail" all the way, paying heavy fines and providing counsel. Papers across the country rallied around, insisting that if reporters were forced to reveal their sources, news gathering would be impaired. Meanwhile, Farber's lawyers tried manifold appeals to New Jersey courts, to the U.S. Supreme Court, and finally to a federal court in Newark, N.J., seeking a writ of habeas corpus (for unlawful imprisonment) to get Farber released.

Then, last week, Federal Judge Frederick Lacey tore into Farber, accusing him of harboring mixed motives. Farber, it turns out, is writing a book about the Jascalevich case and has been given a $75,000 advance by Doubleday, his publisher. Charging that Farber has a financial stake in seeing Jascalevich convicted, Lacey declared: "This is a sorry spectacle of a reporter who purported to stand on his reporter's privilege when in fact he was standing on an altar of greed." How can Farber justify revealing information to a publisher for profit, demanded the judge, but not to a court when a man's life is at stake? James Goodale, the Times's counsel, sharply criticized Lacey for making the book an issue when it was "absolutely, totally irrelevant" to the reason why Farber's lawyers had asked for the writ--simply, to get Farber released until a court decides the merits of his claim. Nonetheless, fearing a subpoena for the book and yet another contempt citation if Farber refused to turn over his manuscript, the lawyers hastily withdrew their habeas petition.

Farber maintains that he has not revealed the identity of any confidential sources to his publisher (or anyone else). He also believes that the manuscript, like his notes, should be privileged. Arguing that the book is simply a red herring, Eugene Scheiman, one of his lawyers, insisted: "Authors have First Amendment rights. Woodward and Bernstein were not required to turn over their manuscripts. No one would argue that they would have to reveal the identity of Deep Throat."

With the issues becoming tangled, Farber and the Times last week seemed to be losing friends even in the press. Washington Post Columnist Haynes Johnson wrote: "All those high-sounding statements about journalistic integrity and courageously protecting news sources in defense of the Constitution now appear compromised." Warned former Wall Street Journal Editor Vermont Royster: "Not the least of the risks we run in raising the banner of the First Amendment on every occasion is of appearing arrogant to the people."

Choosing discretion over valor, Farber and his paper finally decided to hand over the manuscript to Judge William Arnold, who is trying the Jascalevich case. Arnold accepted the book, commenting that it might make "interesting reading." Surprisingly, Jascalevich's attorney, Raymond Brown, initially objected to Farber's offer, saying that he is after the notes, not the book. But some wonder about his motives as well. It has been suggested that Brown does not really want to see Farber's notes, knowing that they are actually useless to his case. He just wants Farber to refuse to turn them over on First Amendment grounds so that if Jascalevich is convicted, he can claim an unfair trial on appeal.

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