A FRIEND OF MINE keeps his framed in the bathroom. It is over the toilet, I think. Others have theirs in their dens, hanging like some trophy. As for me, I have mine in some drawer somewhere, folded up and in an envelope. I run across it from time to time, open it up and stare at it, knowing that some of the old chills will come back. It is a subpoena. I have to tell you that I was scared.
There was a bunch of us who were subpoenaed back then. It was during the investigation of Vice President Spiro T. Agnew and some of us who were covering the case, who had done investigative reporting, were subpoenaed. We were asked to turn over our notes and answer, when the time came to take the witness stand, who had provided us with our information.
That subpoena made something of a celebrity of me. The wire services ran pictures of me and the others who were subpoenaed and our pictures appeared in newspapers across the country. It was not a very good likeness. Colleagues came over and slapped me on the back and others acted as if they envied me my new-found fame, not to mention importance, but down deep, yours truly was coming apart. I did not want to go to jail.
Back then, getting subpoenaed was sort of like being in the Army. You told stories about it, all the fun you had and all the excitement, but you never admitted fear. But the fact of the matter is that I did not want to go to jail. I feared jail and what could happen in it and I most certainly did not want to be separated from my new-born son and wife. Jail, I knew, was going to be no fun at all.
I bring this up now because of the case of M. A. Farber, a reported for The New York Times. Farber already has spent 27 days in jail, an experience described in some places as a minor inconvenience, and he stands to spend some more time in jail. His crime is that he had thus far refused to turn over his notes in a murder case to a New Jersey Court.
Aside from the subpoena and the general issue, the Farber case is much different than the Agnew case. Farber is the journalist whose reporting was instrumental in the undictment for murder of Dr. Mario Jascalevich, a New Jersey physician. The case is different because Jascalevich is no politician fighting a public relations war in the newspapers, but a citizen on trial for murder. His lawyers, as a result, asked for Faber's notes, apparently thinking there is something in them that would help exonerate their client.
The issue, then, comes down to a clash between the First Amendment's guarantee of a free press and the Sixth Amendment's guarantee of a fair trial. It is a balancing act that I would not attempt but it is not too much to say that the New Jersey court did not attempt it either. It didn't ask Farber for his relevant notes, for some of his notes, for a few pages of his notes, it asked him for all his notes - the whole ball of wax.
The legal issue aside, there is yet another complication in the Farber case. He stands accused of accepting $75,000 as an advance for a book he would write on the Jascalevich case. It seems reasonalble to assume that it would be a lot better-selling book if the good doctor were found guilty than if he were exonerated, just as "All the President's Men" would not have been such a runaway best seller if Richard Nixon had been proved to be a misunderstood and sympathetic character.
For some, though, the money was enough to damn Farber. He stood accused it seemed of writing for pay, something I've been doing for some time now. He stood accused also of somehow benefitting if a story turned out a certain way, although that is usually the case in journalism. I, for one, co-authored a book about Agnew that would have sold a lot more poorly, I guess, if Agnew had proven to be the victim of a frame-up.
The New Jersey judges, though, sniffed the cash and went bananas. One of them said it was a "sorry spectacle of a reporter who purported to stand on his reporter's privilege when in fact he was standing on the altar of greed" - the Jersey version of the Cross of Gold speech. The judge acted surprised by the book advance when it was no secret all along.
The point here is not that a court may never have the right to demand to see a reporter's notes. The point, instead, is that this right, if it exists, should be exercised with caution and restraint and only after the issue has been narrowed as much as possible. None of that has been done in the Farber case. Instead, his notes have been asked for wholesale, his paper has been fined, and he himself has spent almost a month in jail.
Just imagine what he would get if he had a larger book advance.