A New Jersey judge cited New York Times reporters M. A. Farber for contempt of court for the second time yesterday for refusing to surrender his notes on a murder case, but later changed his mind.
Bergen County Superior Court Judge William Arnold, over objections from Farber's attorney that a second contempt citation for the same act of refusal would be double jeopardy, asked Farber if he understood what was happening in the courtroom and then informed the reporter that he was being cited for contempt.
Farber already had spent 27 days in jail for refusing Arnold's first order to surrender his notes last July. His appeal is pending before the New Jersey Supreme Court.
After the lunch recess, Arnold surprised and puzzled lawyers, reporters and spectators by announcing that he would hole the new contempt citation in abeyance until after the Supreme Court ruled on Farber's appeal.
"I had indicated I might cite him, but I changed my mind," Arnold said in his chambers. When told that it had appeared that he had actually cited Farber, the judge replied: "If I have, I have changed my mind."
Although Arnold's actions caused initial confusion, they left it clear that if the state Supreme Court does not rule in Farber's favor, the reporter is likely to face a series of new contempt proceedings for his refusal to hand over nots that he says are protected by New Jersey's shield law and by the First Amendment.
The notes have been subpoenaed by the defense in the murder trial of Dr. Mario Jascalevich. Jascalevich is accused of murdering three patients in an Oradell, N.J., hospital by injecting them with fata doses of the muscle-relaxant curare.
His indictment followed an investigation of the hospital deaths by Farber and a series of articles which prosecutors have said was the key to reopening their official probe.
Raymond A. Brown, Jascalevich's attorney, says that Farber's notes are vital to his clients' defense, and the case has escalated into a controversial test of the rights of reporters to protect their sources against their rights of defendants to a fair trial.
At one point yesterday it appeared that Arnold was going to cite Farber for contempt more than once. Farber's lawyer, Floyd Abrams, interjected: "I have argued double jeopardy. I will argue triple jeopardy if you like."
Abrams added, "There must be an end to the amount of contempt Farber incurs for the same refusal."
Brown countered that Farber should be held in contempt immediately not only for his refusal to surrender the documents but also for declining to answer several of Brown's questions about the sources for his stories as a witness in the trial.
Arnold declined to rule in Brown's request for another contempt citation.
"It may well be one event," the judge said of Farber's two refusals "I'm not saying it isn't I'm not going to decide whether it's one or three or four." Other judges would have to settle the issue, he said.
Brown ripped into Farber, saying he might be "the greatest fraud in journalistic history" because he might have no notes at all.
"We brought Farber here (to the witness stand) to show what an absurdity he is," Brown said.
Abrams jumped to his feet, saying "Judge Arnold, at some point Mr. Brown must be controlled." Abrams accused Brown of using "false and defamatory lies" about Farber.
Arnold refused to strike Brown's remarks from the trial record.
The judge's reversal on citing Farber for contempt was not his only change of mind On Monday, Arnold said he would give Farber a hearing on whether the New Jersey shield law protects him from having to surrender his notes.
Arnold said yesterday morning that he would not hold such a hearing unless the notes were first submitted to him for inspection. Farber's original contempt citation stems from his refusal of Arnold's original order to hand over the notes for the judge's inspection.
Later, Arnold said he might hold a hearing on whether the shield law protects Farber against having to answer Brown's courtroom questions, but not on the shield law's application to the documents.
Brown questioned Farber closely about the physical location of his notes. At one point, Brown casually mentioned the reccent U.S. Supreme Court decision that gives law enforcement officials the right to search reporters' residences and offices with a proper search warrant.
Farber testified that some of the notes Brown wants are kept in his home. After learning where the notes were kept, Brown dropped the line of questioning.