New York Times reporter M.A. Farber yesterday was given until noon Friday to appeal to the U.S. Supreme Court before having to begin an indefinite jail term for refusing to surrender his notes on a murder case to a Hackensack, N.J., court.
The New Jersey Supreme Court refused, 5-to-1, to grant a hearing on the civil contempt convictions of Farber and The Times. On Monday Superior Court Judge Theodore Trautwein sentenced Farber to remain in prison and The Times to pay a fine of $5,000 a day until Farber turns over his confidential files.
The reporter and The Times also were convicted by Trautwein of criminal contempt. Farber was given a six-month jail sentence, to begin after he surrenders his files, and The Times was fined $100,000 on the criminal contempt convictions. However, a three-judge appellate panel stayed those penalties late Monday pending a full hearing.
The case, which pits journalists' First Amendment rights to protect the confidentiality of their sources against a defendant's right to a fair trial, arises from the murder trial of Dr. Mario Jascalevich, accused of killing five people with lethal doses of the muscle-relaxing drug curare.
Farber's 1976 articles about a series of mysterious deaths at the Oradell, N.J., hospital where Jascalevich practiced led prosecutors to reopen their investigation of the 1965-66 deaths, which resulted in the indictment of the doctor.
His lawyers argued that Farber's notes are vital to their client's defense.
The civil contempt convictions arise from Farber's and The Time's refusal to honor a subpoena from Jascalevich. The criminal contempt convictions result from a refusal to obey trial Judge Willaim J. Arnold's order that Farber's files be given to him for him to determine whether they are necessary to the defense.
Farber spent almost seven hours in the Bergen County jail Monday before state Supreme Court Justice Moris Pashman granted a stay of the civil penalties pending yesterday's Supreme Court hearing.
Six of the seven justices conferred by conference telephone call from their chambers in different parts of New Jersey after reading papers presented to them by the opposing lawyers.
Only Pashman voted to grant Farber a further stay, but the justices agreed to give him until noon Friday to seek a stay from a justice of the U.S. Supreme Court.
The Times fully supports Farber's refusal to turn over his files. "This is what a free press is all about," publisher Arthur O. Sulzberger said Monday in predicting that Trautwein's decision would be overturned on appeal.
"The name on all these legal paper is Farber, but it could be any reporter's name," Farber said yesterday in a telephone interview. "This issue should be of concern to everyone. The issue won't go away."
Farber said he was disappointed that the New Jersey Supreme Court refused to hold a hearing on the merits of his case because "it's going to have to go to them eventually." He also said that, to his knowledge, the State Supreme Court has not yet interpreted New Jersey's 9-month-old "shield" law that protects reporter's confidential sources.
If Farber were to serve the sentences imposed by Trautwein, he would spend far more time in jail than the three months served by Mark Knops, a Madison, Wis., reporter who refused to tell a grand jury the source of his information about radicals claiming responsibility for a 1970 bombing at the University of Wisconsin. Knops' term is the longest served by an American reporter for refusing to identify confidential sources.