New York Times reporter M.A. Farber was jailed for contempt yesterday for refusing to surrender to a court his raises in the "Dr. X" curare murder case.
Superior Court Judge Baruch S. Seidman of the appellate division set a hearing on the question of the reporter's First Amendment rights in the case for Sept. 13, meaning Farber faces up to six weeks in jail.
"I'm not going to jail because I want to go to jail," Farber told reporters as he surrendered at the Bergen County Jail two hours after U.S. Supreme Court Justice Thurgood Marshall in Washington refused another postponement of his indefinite sentence and of a $5,00-a-day fine for The Times.
"What I'm trying to do is uphold the Constitution of the United States. I'm going to jail for what I believe to be the public interest. The issue is an unfettered, aggressive press." Farber said in the office of Sheriff Joseph Job.
The unusually unruffleable 40-year-old Farber appeared overwhelmed as he was sometimes pushed and shoved by a small army of reporters and cameramen when he gave himself up to Sheriff Job.
Job immediately assigned Farber to a jail block where he would be the only prisoners. Farber was accompanied by Times executive editor A.M. Rosenthal, who said. "I never thought that part of my job as an editor would be to escort a reporter to jail for doing his job."
Both Farber and the newspaper were cited for criminal and civil contempt for refusing to show trial Judge William Arnold the file they compiled on Dr. Mario Jascalevich, an Englewood Cliffs, N.J., surgeon on trial for allegedly killing three hospital patients with the powerful muscle relaxant curare a decade ago.
Farber's investigation prompted authorities to reopen the case.
Defense attorney Raymond Brown, who says Farber collaborated with the prosecutor claims he needs Farber's material to conduct the best possible defense of Jascalevich.
Farber spent seven hours in jail July 21 on the comtempt charge before being released while The Times appealed to the U.S. Supreme Court.
On Wednesday, attorneys for Farber and The Times won a two-day delay of the sentence from Marshall that stay of the sentencing expired at noon yesterday.
Marshall said yesterday he personally felt the case should be reviewed by the high court, but did not feel that the required minimum of four justices would vote to accept the case.
In a seven-page order, Marshall held out little hope for Farber should he appeal to another justice for a stay.
He said that Farber and the newspaper "bear an especially heavy burden, for a single justice will seldom grant an order that has been denied by another justice."
Although Marshall said the state court did not make any independent determination of the need for Farber's material, he added that based on previous decisions in the area of reporters' claims of confidentiality, he did not believe four justices would vote to grant an appeal "with the case in its present posture."
Still, Marshall indicated he felt an important free press issue was involved.
"Many potential criminal informants, for example, might well refuse to provide information to a reporter if they knew that a judge could examine the reporter's notes upon the request of a defendant," Marshall said.
The Times went to Marshall after Justice Bryon R. White refused to interfere with the state court proceedings earlier this week. Persons seeking a temporary stay of lower court judgements can appeal to a second member of the Supreme Court if unsuccessful with one justice.
Times attorney Eugene Scheiman had said the newspaper probably would not go to another justice.