It’s been hard to miss the story of the jailing of New York Times reporter Judith Miller, in the hoosegow still for refusing to divulge confidential sources in the Karl Rove-Valerie Plame fiasco. The wall-to-wall coverage of Ms. Miller’s imprisonment is often accompanied by mention of a prior New York Times reporter who went to jail for 40 days under similar circumstances nearly 30 years ago.
But that old story and its particulars have been a bit harder to find; the reporter in question, Myron Farber, made an appearance on CNN the other day, but in its typically so-brief-as-to-irritate-the-hell-out-of-you fashion and consistent with its moronic tendency to squeeze three guests and a blowhard anchorman into one four-minute time slot, CNN never gave Mr. Farber a chance to remark on the circumstances that put him in jail for criminal contempt in 1978.
And surprisingly, as much fodder for the bloggers as Miller’s quandary has supplied, nobody seems to have taken the time to ferret out Farber’s full story. So your correspondent did some ferreting of her own and has the following to report.
The tale begins in Oradell, New Jersey, in 1965. At the Riverdell Hospital, a surgeon by the name of Dr. Mario E. Jascalevich did not think much of his colleagues, and it seems the animosity was mutual. So when a string of patient fatalities occurred, whispers began that Dr. Jascalevich had brought about their deaths with curare, and the rumors became a criminal inquiry. But the Bergen County prosecutor, dissatisfied with the fruits of the investigation, abandoned the prosecution.
Ten years later, Myron Farber of the New York Times heard an account of the patient deaths in 1965-66, and he began an investigation of his own. Farber compiled some 4,000 pages of notes about the suspected poisoning deaths. In January, 1976, the Times ran a series of stories on the case, identifying the suspect as “Doctor X.” The articles led Bergen County authorities to reopen the matter, and Dr. Jascalevich, then 51, was indicted on five counts of murder. He was also forced to relinquish his medical license. In the meantime, Farber was offered a book contract, reportedly with an advance of $75,000 from Doubleday, to further write on the subject.
The doctor hired a defense attorney who was then one of the most well known trial lawyers in the United States, Raymond Brown. Naturally, Brown targeted the journalist whose work directly led to his client’s predicament. In a series of attacks, Brown called Farber “greedy and ambitious,” pointing repeatedly to the amount of Farber’s advance. And then Brown made a clever move. A very, very clever move, one that I have never even heard of anyone doing in a decade of trial practice: he subpoenaed the reporter’s notes. In legal circles, this type of broad subpoena by an attorney is called a fishing expedition. But there's no name on the act of subpoenaing a reporter's notes, because it is so extraordinarily rare as to be unheard of.
Farber and the Times vehemently objected to the subpoena, citing promises of confidentiality to the sources. Farber declared that he had no information of crucial bearing on the criminal case, nothing that would establish the doctor’s innocence or guilt, but the assertion was deemed insufficient. The judge overseeing the case demanded the notes for an in camera inspection (i.e., the judge wanted to read the notes himself and decide whether they would be released to the defense). Farber refused. The judge slapped the Times with a whopping fine for its refusal to obey a court order--$100,000 flat fine plus $5,000 per day until the notes were turned over to the court. Still Farber refused. As a result, he was jailed for a day in July, 1978, for another 27 days in August, and again in October.
While the reporter languished behind bars, the doctor went on trial for his life. The prosecution’s theory was that the surgeon committed the murders to discredit his colleagues. Defense attorney Brown contended that the patients died of natural causes coupled with malpractice by other doctors at the hospital, and also claimed that the case was a conspiracy by the prosecutor and medical experts. The trial judge directed a verdict of acquittal on two of the five murders, citing the prosecution’s failure to prove that there was curare in those two bodies, and the jury was asked to decide whether the doctor murdered the remaining three patients.
Once the case was submitted to the jury, the trial judge finally freed the reporter. After three hours of deliberation, the jury announced that it had acquitted the doctor of all charges.
The fallout was tremendous. The Farber case cost the Times more than $1 million, including attorney fees and more than a quarter million dollars in court-ordered fines. New Jersey’s legislature, appalled at the reporter’s imprisonment, toughened its shield law to protect reporters in the future, and as a result, that state has one of the strongest shield laws today, protecting journalists from being coerced into revealing sources.
But truth be told, Farber’s case divided even journalists. Said A.M. Rosenthal, executive editor of the Times: “The First Amendment guarantees the right to print the news, but without the right to gather the news, the right to print has very little meaning.” But the posture of the matter pitted the First Amendment’s freedom of the press against a defendant’s Sixth Amendment right to compulsory process to obtain evidence for the defense. Many, including some well-known reporters, thought the Sixth Amendment trumped the First in the doctor’s case—it was, after all, a case of multiple murder. Carl Bernstein of Woodward & Bernstein fame pointed out at the time that “someone’s life hangs in the balance,” and concluded that the freedom of the press was not absolute. Famous columnist James J. Kilpatrick drew the same conclusion, saying the Farber case was not a good set of facts on which American journalists should rely in pushing for a federal shield law.
So that’s Farber’s story. Complicated. Interesting. And it helps one understand the tough stance the Times has taken with respect to Judith Miller’s confidential sources. Farber’s information theoretically could have saved a man from the death penalty or condemned him to a well deserved execution; Miller’s information theoretically could prematurely end someone’s political career and/or result in someone pulling down a prison stretch for leaking classified information. Miller’s case is the more compelling of the two, and perhaps Congress will finally get around to writing that federal shield law now that it has a good set of facts to work with.
And by the way, Farber did end up writing that book. Somebody is Lying: The Story of Dr. X was published by Doubleday in 1982. For more about Farber's jailing, see this article by him: On Not Naming Names
Sources: “Farber Target Ruled Innocent of Murder,” by the Associated Press, Syracuse Post Standard, Oct. 25, 1978. “Bernstein Says Press Freedom Is Not Absolute,” Newport Daily News, Oct. 19, 1978. “Times Reporter Set Free;” sidebar: “Surgeon Acquitted of Murder-by-Poison,” by the United Press, Chicago Daily Herald, Oct. 25, 1978. ‘I’m in jail for the public interest,” Elyria Chronicle Telegram, Aug. 5, 1978. “Reporter in Jail,” by James J. Kilpatrick, Annapolis Evening Capital, Aug. 21, 1978.