AT A HEARING the other day on The New York Times-Myron Farber case, a member of the New Jersey Supreme Court told one of the lawyers, "We need some help." His problem was that the case, which once seemed a clear test of a reporter's right to protect confidential sources and notes, has now become such a procedural jungle that the judges need machetes as much as opinions. There is no easy way out now for anyone - not for Mr. Farber or The Times or the state supreme court or the lower courts. And the longer the case goes on, the thicker the procedural jungle is going to become.
Strange as it may seem in light of all that has been written about the basic issues in this case, last Tuesday's hearing before the state supreme court gave Mr. Farber and The Times their first opportunity to argue those issues in court. The lower courts, which jailed Mr. Farber and fined The Times for contempt, have refused to consider basic questions until Mr. Farber has handed over the trial judge 500 or so pages of his notes. Mr. Farber has aruged that the hearing should come first because, if he is right, the notes don't have to be handed over at all. Until the state supreme court intervened, almost all the legal maneuvering had involved this impasse, not the fundamental claim that Mr. Farber has a right under the New Jersey shield law and the U.S. Constitution to protect confidential sources and notes.
Now that a hearing has been held on the merits, however, the question is still much the same. Several legal issues argued before the supreme court turn on particular facts - such as whether Mr. Farber was an agent of the prosecution (as the defense lawyers contend) or just a reporter (as he contends) and whether the defense lawyers really need all, or just a few, of his notes. Because no hearing has ever been held in a lower court, no judge has determined what the facts are on such questions. Yet, the outcome of the case may well depend upon those facts.
Thus, the New Jersey Supreme Court has a real problem on its hands. Normally, the job of determining facts belongs to lower courts. So it would seem to follow that the higer court should reverse the contempt convictions and order a lower-court hearing. But if it does so, it will appear to be saying that The Times was right all along. That would mean Mr. Farber has needlessly spent 26 days in jail, since the supreme court could have said the same thing two months ago when the case was first before it. One alternative is for the supreme court to order a lower-court hearing without reversing the contempt conviction (a proposal made by New Jersey's attorney general). But that would appear to be a verdict-first, trail-afterward situation; The Times and Mr. Farber would be punished regardless of whether they won or lost at the hearing. A third option is for the supreme court to uphold the lower courts. But then its own decision in late August to suspend the criminal-contempt sentences would look foolish; the only purpose of those sentences was to force Mr. Farber and The Times to comply with the judge's order as quickly as possible.
The fact that the supreme court did suspend the sentences suggests the justices recognize that something is amiss in this case and want to find a way out. Similarly, a statement by The Times suggests that it, too, wants to find a way out. Its lawyer told the justices that some of Mr. Farber's notes might be turned over without protest if only the lawyers on the other side would specify what they want instead of demanding everything.
The best course seems to be for the supreme court to figure out the least embarrassing way to order a lower-court hearing and then tell the trial judge to do what U.S. Supreme Court Justice Thurgood Marshall suggested he do two months ago: force the lawyers to be specific about which notes they want, balance their need for those notes against the claims of Mr. Farber and The Times, and make a decision that can be appealed. It was the refusal of the trial judge to do that last spring - and the refusal of higher courts to tell him to - that produced the existing procedural tangle. Until the case is sent back to Square One, it seems unlikely that the judicial system will be able to salvage anything useful from it.