On the heels of the M. A. Farber - New York Times "Dr. X" case, a defense attorney has subpoenaed a reporter's notes on a spectacular Brooklyn murder case, setting up what could become another test of a defendant's right to a fair trial against a reporter's right to protect his sources.
However, while Farber served 40 days in jail for resisting a demand for all his notes, free-lance writer Lee Hays, who is writing a book about a series of alleged murders connected with one of "Bishops" Devernon LeGrand has already won an important victory that was denied Farber.
Hays was served with a subpoena early this month by lawyer Joel Ezra, who is defending Navatro LeGrand against two murder charges. The subpoena demanded all of Hays' notes on the case obtained from three named persons and "any and all other documentation pertinent or in any way concerning the trial of Navatro LeGrand.
Like Farber, Hays protested that the subpoena was too broad. Unlike Farber, he won.
Brooklyn Supreme Court Justice Sybil Hart Kooper agreed with Hays' contention that the subpoena was a finishing expedition and quashed it.
The New Jersey Supreme Court said the subpoena for Farber's notes was relevant until the notes had been examined. If found Bergen County Judge William Arnold had acted properly in ordering that Farber's notes be submitted to him to determine whether they should be given to the defense.
Farber's attorneys repeatedly asked that the court order the subpoena redrawn more narrowly, but they were unsuccessful.
After Ezra's initial subpoena was thrown out, he came back to Hays with a subpoena for any notes and tapes the wrriter has of conversations with Frank Holman, a likely witness at the Brooklyn murder trial.
Hays refused to comply with this second subpoena at a hearing Tuesday. Ezra said in court that he would be satisfied if Hays gave his files to Kooper for the justice to decide whether they should be furnished to the defense, in effect asking Kooper to follow the pattern of the Farber case.
Kooper gave Hays until Nov. 28 to respond fully to the second subpoena.
Melvin L Wulf, Hays' lawyer, said that he will apply to quash the second subpoena on constitutional and New York journalistic shield law grounds and by raising questions as to how seriously the defense needs the Holman material and whether it is not available from other sources.
Ezra acknowledged that he has no reason to believe anything Holman has told Hays would tend to exonerate his client, but he argued that the material could be useful to impeach Holman as a witness should what Holman told Hays prove to be at variance with his trial testimony.
In arguing his case, Farber and The New York Times, predicted that a ruling against them would encourage defense attorneys across the country to subpoena reporters' notes whether or not they had reason to believe them relevant.
Ezra said that when he first mentioned his plans to subpoena Hays' notes, Justice Kooper replied: "Don't tell me we're going to have a Farber case."
Ezra said he first learned that Hays (and co-author Margaret Fuller) are writing a book touching on his case in a conversation with Hays outside the Brooklyn courtroom. "I had a conscience battle," he said.
"Do I take Hays' word that he has nothing exculpatory (for my client) and not do what I consider in the best interests of the defendant?"
"I don't know which is worse," Ezra said of the conflict between a defendant's Sixth Amendment rights to a fair trial and a reporter's First Amendment rights to gather news, "if no defendant could get this kind of information or if no informant could be protected. I guess everyone has the same queasy feeling on this."
For all the parallels, there is a significant difference between the Farber and Hays cases. Farber's investigation led to the reopening of a dormant case and the indictment of Dr. Mario Jascalevich on charges of using curare to murder hospital patients.
Hays began his research only after Brooklyn authorities had been working for a long time on the murders with which the LeGrands have been charged.
Hays and Fuller's book, which is contracted to Harper & Row, deals with the LeGrand family. The family is headed by self-proclaimed Bishop Devernon LeGrand, who is now in prison for murdering two teen-age sisters whose dismembered and burned bodies were retrieved from a lake in the Catskills.
The "bishop" has more than 50 children by more than 10 women and his headquarters was a large house in Bedford-Stuyvesant where he ran a pentecostal church and sent "nuns" out begging. His annual revenue was believed to have exceeded $250,000, Hays said.
At least 15 people associated with the LeGrands have disappeared at various times and some of these have been found murdered while others remain missing.
Hays said that if he were to surrender his notes he would not only be compromising source, but perhaps endangering lives since there are likely to be future cases against the LeGrands, and several of those who have disappeared have been potential witnesses.
Navatro LeGrand, whose lawyer seeks Hays' notes, is a son of the bishop. He and a stepbrother, Steven Straun, are accused of murdering two pimps.