The New Jersey Supreme Court yesterday ordered New York Times reporter M.A. Farber back to jail and reimposed the daily $5,000 fine on The Times for Farber's refusal to surrender his notes to a lower-court judge.
Lawyers for Farber and The Times said they would appeal to the U.S. Superme Court before the 4 p.m. Tuesday deadline the New Jersey court set the Farber's return to the jail, where he has already spent 27 days.
Justice Worrall F. Mountain, writing for the 5-to-2 majority, said Farber has no First Amendment protection against being compelled to turn over his notes and that the New Jersey shield law which specifically protects a reporter against disclosure "to any court" is outweighed by the constituational Sixth Amendment guarantee that a defendant shall have a fair trial.
New Jersey's court also said that while other reporters in future cases would be entitled to a hearing on their claim that the state shield law protected them. Farber is not.
The court said that Superior Court Judge William Arnold, who ordered Farber to surrender the notes for Arnold's determination whether they should be passed on to the defense attorney who subpoenaed them, had, in effect, held such a hearing by presiding at the trial in which Farber's involvement is an issue.
New York Times Executive Vice President James W. Goodale noted that the court decision would permit other journalists to have a haring before being required to turn over their notes and said, "but Mr. Farber continues to be denied just such a hearing and has been ordered to spend at least six months in jail. We think this is unfair and unconstitutional."
Farber and The Times have been convicted of criminal and civil contempt. On the criminal charge, Farber was sentenced to six months in jail and The Times fined $100,000. On the civil charge. Farber was ordered to remain in jail until he surrenders his notes and The Times was fined $5,000 a day until the notes are turned over to Arnold.
Farber's 1975 investigative reporting led Bergen County prosecutors to reopen a 1966 investigation of a series of unexplained deaths at an Oradell, N.J., hospital.
Dr. Mario Jascalevich was indicted and is on trial for murdering three of the patients, allegedly by injecting them with lethal doses of the muscle-relaxant curare.
Jascalevich's attorney Raymond A. Brown, claims Farber has information that would help prove his client's innocence, and by issuing a subpoena for all of Farber's notes, has touched off what has become a test of reporters' rights to keep their sources confidential.
Farber's attorney, Floyd Abrams, argued that the subpoena was overly broad and should specify what information Jascalevich is seeking.
The Supreme Court of New Jersey ruled that the subpoena is properly phrased and that Judge Arnold cannot deal with the question of whether Farber's material is relevant to Jascalevich's defense without first examining what Farber has.
The decision said that a private inspection by a judge "is not in itself an invasion" of Farber's possible shield law protection even though that shield law specifies that a reporter cannot be compelled to deliver confidential information to a court.
Goodale argued that the New Jersey Supreme Court had, in effect, found the state's sheild law unconstitutional. "We believe that law to be constitutional," Goodale said.
While the decision denied Farber the protection of the shield law, the majority opinion specified that the law is unconstitutional. It said, however, that when the Constitution and the shield law collide, the latter must yield, and therefore Jascalevich's constitutional right to a fair trial prevails.
The Supreme Court also said that Farber may be in a different position from other reporters because he was granted access to the prosecutor's file on the murders and because he later discovered a document that had been missing from that file and returned it.
"This glaring fact of [Farber and the prosecutor's] close working relationship may well serve to distinguish this case from the vast majority of others in which defendants seek disclosure from newsmen in the face of the shield law," the decision said.
In dealing with the First Amendment protection which Farber had claimed, the state Supreme Court cited the 5-to-4 1972 Branzburg U.S. Supreme Court decision in which it was held that reporters had no right to refuse to testify to a grand jury because of a First Amendment claim that they have the right to protect confidential sources.
"In our view the Supreme Court of the United States has clearly rejected this claim and has squarely held that no such Fist Amendment right exists," the New Hersey court said.
In a dissent, justice Morris Pashman said the majority decision "runs counter to the core concept of our legal system - due process of law."
"I find it totally unimaginable that the majority can even consider allowing a man to be sent to jail without a full and orderly hearing at which to present his defenses. Mr. Farber probably assumed, as did I, that hearings were supposed to be held and findings made before a person went to jail and not afterwards," Pashman wrote.
"It is a hard case that is detined to make bad law," Pashman wrote. "The victims will be the press, the courts and the public interest."
Pashman also argued that the constitutional confrontation over Farber's refusal did not have to happen. It should have been avoided by granting Farber and The Times a hearing he said.
THe majority, however, agreed with trial Judge Arnold who has maintained that he cannot determine whether Farber's notes are relevant to the Jascalevich trial unless he sees them.