The opinion of the court was delivered by: LACEY
Now, I'm doing so in connection with the following opinion that I'm going to place into the record. At the end of extensive argument this morning and having considered all of the submissions by counsel, I had indicated to counsel that I inclined to the view that petitioner had not been deprived of any essential right, constitutional or otherwise by Judge Arnold. As I indicated, I felt perhaps intuitively, that there was almost what Chief Justice Burger has referred to as a minuet going on. We were moving around, but we were really playing with form rather than with substance.
I happen to have been exposed in my professional career, both as a lawyer and as a judge and as a prosecutor, to the steadfastness with which reporters cling to the confidential source information that they have and the absolute position that they assume in connection with their assertion of First Amendment rights. Based upon everything that I've heard here today and everything that I've read and the positions taken by Mr. Farber, even with respect to the location of the manuscript, there is no doubt in my mind as somebody who's been in this world for perhaps all too long, at this point, that Mr. Farber, even if he had an extensive hearing before Judge Arnold, once having been told that he was to turn over the manuscripts would have stood on his First Amendment right in absolutist terms, enforcing what he would regard as a reporter as his right to keep undisclosed what he calls his confidential sources, and undisclosed information.
In any event, inquiry by me of counsel established that this hearing that redundantly we have been hearing so much about, which is alleged was denied by Judge Arnold, would, if it had gone forward, have consisted of nothing substantial. Instead nothing more than Farber testifying on direct examination at least, that he was employed by the New York Times and that he was claiming a First Amendment newspaper reporter's privilege against disclosure of confidential sources and unpublished information.
Having read the materials before me carefully, I can say with confidence that Judge Arnold would be the most surprised man in the United States if anybody were to contend here and now that that information was not before him at the time he made his decision. It's clear to me that he was well aware of the fact that Farber was a reporter, was employed by the New York Times and was making a First Amendment claim of privilege. Indeed, this is precisely why Judge Arnold instead of just directing everything be turned over to Jascalevich and his lawyers, urged a break-out of this Catch 22 dilemma and said "Let me see this in chambers."
Now, what he was suggesting to counsel was "Now look, if you really are telling me the truth, if these really are confidential sources that you're seeking to keep undisclosed and if this really is information that up till now has gone unpublished, then your right to a First Amendment claim is advanced."
Now, very often when an absolutist position is taken by a reporter and incidentally, I don't condemn any of this and I think I've indicated earlier I've participated in these programs and I am simply stating I recognize these positions and it always comes down to what I've labeled earlier here today the "crunch", who gives way? The reporters say "Why should the judge make the decision?" and the judge says "Why should the reporters make the decision?"
I don't think we're ever going to resolve it to the satisfaction of 100 percent of the people involved.
But interestingly, most of the time when the privilege is asserted we don't get the opportunity as we do here to test whether the reporter is being truthful as to why he is seeking to maintain undisclosed his files and his records. Usually we are told that the invocation of the First Amendment is sacrosanct and that as a reporter, I can't permit you to look at these files and that's the end of the matter. Here, however, the window does exist and it can be peered through and we do see something other than has been urged before several judges in this State and in New York, Judge Rothwax and the Appellate Division there and Justices Marshall and White and, indeed, I include myself in that group of people on the bench who were misled by the submissions.
Ironically, were Judge Arnold to have this matter before him now he would have Mr. Jascalevich's counsel to explore on cross-examination of Farber, who would be tendered as a witness by Mr. Scheiman under the offer of proof that he gave me here today, that he said he would have made if given the opportunity to do so before Judge Arnold, a great deal more information which has been developed since Judge Arnold first took the action about which the petitioner complains.
Thus Judge Arnold now would be able to consider whether in fact Farber's claims that he was protecting sources which were "confidential" and information which was "unpublished" were in fact so. Everything leads to the conclusion, and I so find, that Farber was inaccurate and misleading and fabricating in his submission to Judge Arnold and every other judge, including Justices White and Marshall. This stems from the documentation received by this Court from the respondent in this proceeding, a proceeding initiated by the petitioner himself.
It is clear that Farber, having succeeded in getting the Bergen County Prosecutor to reopen the Jascalevich investigation, proclaimed, not admitted, but proclaimed, that he had done so. Thus you would assume that he had a stake in the prosecution. It now appears that he had long planned to profit financially from his endeavor.
This lady who testified here this afternoon bears witness to that, which is also advanced by the contents of the documentation. She was peddling a book, having been retained by him at or shortly after the time that, through Farber's efforts, the bodies of five people had been exhumed, although no written contract between them was produced.
Even before, as I put this chronologically together, the grand jury proceedings were completed, she was negotiating for this in soft cover, if I finally have this straightened out in my mind, the soft cover rights to this book. She goes to Doubleday and they're not interested. Their April letter so declares.
Then an indictment is returned, an indictment once again for which Farber takes credit for having generated. Lo and behold, Doubleday reverses its position and now agrees to do the publishing work. $ 75,000 is to go to Mr. Farber. On the execution of the contract, in July, he gets $ 37,500, and not one judge is told about this throughout the course of these proceedings. Instead, this is a man who is standing, sack cloth and ashes, firmly on the First Amendment, pristine, claiming the freedom of the press and nobody really knows that he stands, if things go, as I find he was hoping they would go, to become a very wealthy man.
Now, the shocking thing about this, and I must say that, with all respect to the fact that the lady who testified here was obviously nervous and in a new experience as a witness, that I, based on my experience in real life, must disagree with her. The shocking thing about it is that Farber's financial success and Doubleday's and Warner's and indeed Miss Kroll's with her 10 percent of Farber's earnings, that all of them are going to be affected very dramatically by what happens to Jascalevich. In an inverse relationship their fortunes rise as his fall. If Jascalevich is acquitted Doubleday and Warner have on their hands nothing more than a reporter's discredited notion that murder was committed.
If, on the other hand, he is convicted then, of course, Farber will come on the scene as not only the author of a book but the great American hero who single-handedly vindicated the deceased.
Now, none of us here knows whether Jascalevich is innocent or guilty. I am not taking his side nor do I stand against him. I don't care how the case comes out.
On the other hand, I find that Farber does care how the case comes out, that Farber wants Jascalevich to be convicted. That finding is based upon everything that has been submitted to me in this record that we've discussed here today. He wants Jascalevich to be convicted. Why do I say that? Because things being what they are in terms of human affairs he does have a stake, even if ...