A Jury Sets Dr. X Free

For four months, the man mostly in the shadows at the Dr. X murder trial in Hackensack, N.J., has been the 51-year-old defendant himself, Mario Jascalevich. The Argentine-born physician was accused of killing five hospital patients in 1965 and 1966 by injecting them with lethal doses of curare, a muscle relaxant. His motive, the prosecution speculated, was to discredit other doctors who were challenging his authority as the hospital's chief surgeon.

But during the last half of the trial, far more attention was given to the constitutional confrontation that arose when the defense demanded the notes of New York Times Reporter Myron Farber, who had first dubbed Jascalevich Dr. X in articles that led to the multiple-murder indictment. Last week Jascalevich was back at center stage when the jury, after deliberating for less than three hours, acquitted him of all charges. His supporters in the courtroom burst into applause. Said the doctor: "Justice has been done."

The jury based its verdict mostly on the defense's contention that curare could not possibly be found in tissue from bodies that had been buried for more than a decade. To support this, Defense Attorney Raymond Brown called 21 expert witnesses, including one from Sweden.

Brown's other line of defense was to contend that Farber and former Bergen County Prosecutor Joseph Woodcock had conspired to frame Jascalevich. Claiming that he was looking for evidence to support that theory, Brown demanded Farber's notes. Farber refused, citing the First Amendment and a New Jersey shield law allowing reporters to keep their sources confidential. Moreover, he insisted he had no information that would establish Jascalevich's guilt or innocence. Farber was cited for contempt, jailed and fined $2,000; the Times was fined $100,000 plus $5,000 for each day of the trial the reporter's files were withheld.

While the jury was deliberating, Farber was summoned before a Bergen County judge, Theodore Trautwein, and asked one last time whether he still refused to yield his notes. "Yes, sir," said Farber. Replied the judge angrily: "You and only you, Mr. Farber, and that superior being you must address yourself and your conscience to, know whether you have withheld something from the trial court and the jury which would have been of aid in the search for truth." Then, because the trial was over except for the jury's verdict, Trautwein released Farber from jail and suspended the contempt penalties against him and the Times.

But the case is not entirely closed. Jascalevich still faces malpractice charges before the New Jersey board of medical examiners, which could bar him from practicing medicine. Farber and the Times, which has paid $285,000 in fines and $700,000 in legal costs, are appealing the contempt citations to the U.S. Supreme Court. Its decision could draw more clearly the line between a defendant's right to a fair trial and the First Amendment's protection of the press.

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