against a defendant. Moreover, to the extent Farber stood on his reporter's privilege before Judge Arnold, his support is demolished by his having disclosed all or substantially all of the alleged confidential information and unpublished notes to his literary agent and publishers. n* The precise extent of the disclosure is impossible to fix because Farber, notwithstanding my suggestion that complete disclosure must have been made, declined to produce the manuscript at the hearing before me. I can only assume and the facts at hand support this assumption that the manuscript reveals in infinite detail Farber's investigative work.
2. Farber's agreement with his literary agent was entered into in early 1976; however, no written contract between them was entered into the record.
3. No publisher was interested in publishing Farber's proposed book until Jascalevich was indicted. Warner, with whom Farber negotiated before the indictment was returned in May, 1976, insisted on inclusion of a clause which conditioned its obligation upon an indictment or other criminal proceeding being instituted against Jascalevich. Farber understandably would not accept such a contingency; he wanted to write a book whether or not Jascalevich was indicted. It was not until the indictment that Doubleday reversed its earlier declination of April 1976 and agreed to publish the book.
4. Farber has a substantial financial interest in Jascalevich's fate. An acquittal might even lead responsible publishers to abandon their publishing plans. Doubleday, Warner and Farber are best served financially by Jascalevich's conviction.
5. This court, it should be noted, does not condemn Farber for writing a book about the Jascalevich matter and his role in, to use his agent's word, having "instigated" the reopening of the investigation. I simply find it incomprehensible that an able and responsible reporter would not understand that he owed the duty to the several courts in which he has sought relief to reveal that he had embodied in a book, that would be published right after trial (at least, if Jascalevich is convicted), so much, if not all, of the information as to which he was claiming a reporter's privilege and that this book had been given to Doubleday, Warner and his agent, so that his confidentiality claim might be evaluated in that light.
6. Farber was deprived of no fundamental rights by Judge Arnold. His claim of deprivation of hearing is hollow and form without substance. Given an opportunity to enter of record before me what his proofs would have been before Judge Arnold, his attorney simply stated that Farber would have testified he was a reporter employed by the New York Times at the time he investigated the Jascalevich matter. Judge Arnold knew all this. Indeed, this is why he called for an In camera disclosure rather than directing the routine compliance with a subpoena expected of every citizen. It is also noted that at no previous point in his travel through the courts had Farber ever defined what evidence he was barred from introducing before Judge Arnold. It is interesting to speculate what Judge Arnold's reaction would have been if, on cross examination, Farber had been forced to testify at length on his activities as an author (if Jascalevich's counsel had such information at that time).
7. This case demonstrates the necessity of further calm and deliberate review of the fair trial free press conundrum where, as here, in a criminal proceeding a reporter claims a first amendment privilege against disclosure and honoring his claim will injure sixth amendment rights of a defendant. A host of questions are raised. Should a court accept the reporter's assertion without question? Human experience teaches us that, under stress, people do not always tell the truth. Farber, in this instance, was insensitive to what ethical standards required of him in the way of full disclosure to Judge Arnold. Should a reporter's cry of First Amendment privilege require courts to beat an ignominious retreat, with abjuration of a defendant's Sixth Amendment rights? Who is to dissolve the impasse? Under our system the judicial branch performs the role of the dispute resolver. What is there about the reporter's role that removes him from that kind of resolution of disputes wherein his work is involved?
These questions can best be left to another day. Since Farber wishes to withdraw his petition rather than expose his manuscript to this court's view, I shall enter an order dismissing the matter.
© 1992-2004 VersusLaw Inc.