On Not Naming Names
The reporter was given a choice: Identify his confidential sources or go to jail. He chose jail
Myron Farber
The story that would send me to jail for refusing to name confidential sources 27 years ago began with a letter: three typewritten pages that would not only change my life and the lives of others but also lead to a blistering clash between the First and Sixth Amendments of the U.S. Constitution. When the case ended, three years later, it had become a story about a reporter as much as it was a reporter's story—different from the one that sent New York Times reporter Judith Miller to jail for refusing to name a source this July, but in important ways the same.
In June 1975, when the letter arrived at the New York Times newsroom, I was a 37-year-old reporter there. An editor named Mike Levitas handed it to me. The letter was from a woman who had something very chilling to say: she had heard that the chief surgeon at a hospital had murdered 30 to 40 patients a decade earlier.
Her letter didn't name the surgeon, or the hospital. There were no clues to where this had happened, if indeed it had. But like Levitas, who had met the letter writer and didn't think she was a crank, I knew this story had to be pursued, even without her cooperation. My first job was to identify the hospital. The letter suggested that drugs might have killed the patients, so I contacted sources in the world of forensic toxicology. Fortunately, one remembered having been consulted about a "suspicious" case like this at Riverdell, a private hospital in Bergen County, New Jersey.
Over the next half year, I roamed North Jersey and other parts of the country, trying to piece together what had happened in 1965 and 1966 at the hospital (which had since closed); trying to find people who knew about the case; and trying to persuade those who were reluctant to talk to me to do so, in confidence if necessary. Ultimately, my confidential sources would provide information that was vital to getting stories about the deaths into print.
The chief surgeon at the time of the deaths, I learned, had been Mario E. Jascalevich, who had been born and raised in Argentina and trained in America. He seemed never to lose patients after surgery, but the postoperative mortality rate of a surgeon new to Riverdell was soaring. The new surgeon couldn't understand it until he, and then equally puzzled doctor-directors at the hospital, opened Jascalevich's locker on October 31, 1966. Strewn about it were 18 mostly empty vials of the alkaloid d-tubocurarine—better known as curare—and syringes, one of which was filled with fluid. Properly used, curare relaxes breathing muscles during surgery; administered without artificial respiration, it can be lethal. Shaken by the sight, Riverdell's directors took an unusual step for doctors—they went to the county prosecutor, Guy Calissi.
By the time I was poking around, Calissi had become a judge in Hackensack, the Bergen County seat. His successor as prosecutor, Joseph Woodcock, was only vaguely aware of the Riverdell investigation, and when I met him in 1975, I feigned only passing interest in it—in connection, I said, with another case I was looking at. But I was panting to see the case files.
Woodcock had them brought out of storage, and I was shown into a room with a two-way mirrored wall. I assumed I was being watched. When I finished reading the files, I agreed with a remark Calissi had made in November 1966, after questioning Riverdell's directors and Jascalevich: "Somebody is lying." And after I located Jascalevich's 1966 deposition—it was missing from the files, but a lawyer friend of one of the directors had kept a copy—I was even more certain that Calissi was right. And that it mattered.
Calissi's investigation had been conducted largely by his chief assistant, Fred Galda, who by 1975 had also become a judge. The investigation had lasted only a few weeks and was never put before a grand jury—or reported in the newspapers. When I caught up with Calissi at home, he said, "We had many suspicions" that Riverdell patients had been murdered, but "no hard evidence." When I said Galda had told me that medical experts judged the deaths to be "plausible," Calissi scoffed. "That's horsesh—t," he said. "There was something to that goddamn case, I'll tell you that."
Using names and addresses—many of them out of date—from the 1966 file, I pored over phone books, leaned on officials for death certificates, called on funeral homes and appealed to the Social Security Administration to forward my letters seeking interviews with people who might have something relevant to say. I reached out to scientists and pharmaceutical companies for arcana about muscle relaxants. Doors were slammed in my face, and telephones were slammed down in my ear. The worst moments, of course, were when I had to tell people that the death of a parent or child, awful as it may have been at the time, was actually believed to have been suspicious. No one had ever told them that.
My efforts to speak with Jascalevich came to naught. He had resigned from Riverdell after the investigation but continued to practice in New Jersey. I sent him registered letters, but all I got were the return receipts. I phoned his office, but got only his secretary. I sat in front of his office in bitter cold and waited in vain for him to appear. In his confused and confusing deposition in 1966, he had said he used the curare in experiments on "dying dogs" at a medical school in Jersey City and had brought the used vials back to the hospital, miles away in Oradell, for record-keeping.
I tried everything to nail this down, hunting from Jersey City to a dusty hamlet in South Carolina, where a former dog attendant from whom Jascalevich said he had gotten the animals was then living. But I could find no one who had given any dogs to Jascalevich.
The Times published my first articles about the case in January 1976, identifying Jascalevich only as Dr. X to protect the privacy of someone who had not been charged with any crime. It was big news. The wire services picked it up, and the leading local paper, the Record, assigned 13 reporters to the story. By then Prosecutor Woodcock had decided—for reasons of his own—to reopen the case. He began by exhuming the bodies of five Riverdell patients who had not been given curare during surgery. Within months his experts, using newly developed techniques in multiple laboratories, reported finding curare in three of the bodies; the tests on one body were inconclusive, and the last corpse was too deteriorated for testing.
Jascalevich—whose name had become public during the investigation—was indicted on five counts of murder. I moved on to other stories.
When the trial began, in February 1978, the surgeon's attorney, Raymond A. Brown, subpoenaed me for oral testimony and moved to bar me from either covering or observing the trial on the grounds that I would be a witness and was not "above the law." Judge William J. Arnold asked Brown what kind of evidence he expected me to give, and Brown refused to tell him. "I will not do it," he said. "...I will not tell you or any living man anything about [Jascalevich's] defense."
Arnold ruled that I would have to testify. "The rights of the press under the First Amendment," he wrote, "can never exceed the [Sixth Amendment] rights of a defendant to a fair and impartial trial."
Brown then went further: he served me with the broadest subpoena ever issued to an American reporter, demanding all notes of interviews, memoranda, pictures, recordings and "other writings" relating to a list of 193 potential witnesses in the case. Everything, Brown said, was crucial for the defense—"I want to see it all."
I answered the subpoena. In my testimony, in May and September 1978, I sought to be reasonable, answering the great majority of Brown's questions about what I had done and seen. I did not surrender everything in my desk, as Brown wanted, but I turned over some material, most of which the defense already had. I refused, however, to disclose confidential sources. For that, the Times was fined $100,000 as a criminal penalty, plus $5,000 for each day I continued to refuse. I, too, was held in civil and criminal contempt of court. I was remanded to the Bergen County Main Jail, to serve until I provided everything, including my confidential sources, or until the trial was over—plus six months on the criminal contempt charges. It looked like I might be there a year or more.
Seeking a hearing on Brown's subpoena, we appealed up the line to the U.S. Supreme Court, which declined to take our case-within-a-case. Meanwhile, I was in and out of jail several times for a total of 40 days between July and October 1978. By the end of it, strangers recognized me on the street. "Aren't you the man who said no?" I was asked.
The main jail was a 68-year-old fortress that an investigative commission had declared unfit for human habitation. Shortly before I arrived, an inmate had hanged himself with his sheets. During my first days inside, I was inundated with supportive mail. A sixth grader in Iowa asked to borrow my notes for a school paper. A woman in Los Angeles said she had named her puppy Farber. The town of Farber, Missouri, was making me an honorary citizen. But as the days and nights wore on, in brutal heat, I grew ever more weary...even a little stir-crazy.
I was allowed to have books and a typewriter and to walk my cellblock, but there was no yard for exercise or air. The food was everything prison food is reputed to be. Some guards were friendly, even respectful of my stand; others were hostile. One guard, convinced the jail was haunted by the ghost of an inmate who had hanged himself two years earlier, would flick on the lights when he patrolled at night, waking everyone.
I was invited to join a trusties' gin rummy game that with different players, must have been going on for decades. But with a few exceptions, my fellow inmates were not the company I would otherwise have kept, though almost all claimed that they'd been framed. In the cell next to mine was a landscaper charged with beating his mother to death; he banged continually on our common wall. Across the corridor, a German tourist charged with sodomy was regularly taunted by other inmates. Above me, a shouter would deliberately overflow his toilet, causing water to pour onto our floor.
The mood at the Times was also glum, less because of the judicial pressure than because of a general newspaper strike in New York that had begun on August 6, 1978, and would continue after Jascalevich's trial ended, on October 24—then one of the longest proceedings for a single criminal defendant in U.S. history.
The accused never testified. Brown, Jascalevich's attorney, argued that he had been framed, first by jealous and incompetent Riverdell doctors in 1966, and again a decade later by the prosecutor, medical experts and me. As for the curare in the liver (and, it appeared, lung, muscle tissue, urinary tract and eye) of a 4-year-old who had been recovering from the removal of intra-abdominal cysts—Brown said it had gotten there "by accident or design" after the child's body was exhumed.
The jurors, without reviewing any of the 395 exhibits or testimony by 76 witnesses, took two hours to return a verdict of not guilty. Some of them said they were not convinced that curare could remain in embalmed bodies for a decade and concluded that the patients had died of natural causes. They said my role in the case played no part in their thinking.
On that day, though, what mattered most to me was that I was released, the court having suspended the criminal contempt charge with Jascalevich's acquittal. I was free to go, and I was glad to go. I like to think I could have withstood much more than the 40 days I served—lasted however long it took—but I'll never know.
In 1980, after examining cases at other hospitals, the New Jersey Board of Medical Examiners found Jascalevich guilty of "gross malpractice or gross neglect and lack of good moral character" and revoked his license to practice medicine. He returned to Argentina, where he died of a cerebral hemorrhage in 1984 at age 57.
In 1982, Gov. Brendan T. Byrne of New Jersey pardoned the Times and me of our convictions for criminal contempt and returned $101,000 of the $286,000 the Times had paid in fines. Our purpose, Byrne said, had not been "to insult or frustrate the judicial process, but to stand on a noble, if sometimes imperfect, principle."
This ordeal came back to me, of course, in July when Norman Pearlstine, editor in chief of Time Inc., turned over to the government Time magazine reporter Matthew Cooper's confidential notes in a case involving the exposure of a CIA agent, Valerie Plame, after the Supreme Court had declined to hear Time's appeal. At that point, Pearlstine told reporters, he concluded that "we are not above the law and we have to behave the way ordinary citizens do." He also said he would have given up the Times' information in 1978.
I'm thankful that back then Pearlstine wasn't at the Times, where executive editor A. M. Rosenthal and publisher A. O. Sulzberger were as stalwart defenders of the First Amendment, and of their ink-stained wretches, as could be found in any newsroom. Sulzberger made a public statement of unequivocal support. And Rosenthal, who was profoundly concerned about a tremendous increase in subpoenas of reporters in the 1970s, told me not to give a moment's thought to the fines the newspaper was paying. "Every penny the Times has ever made, it has made because of the First Amendment," he said. "And if we have to, we'll spend every last penny for the First Amendment."
I believe I did the right thing in going to jail in 1978—for my own self-respect, for the finest traditions of the press and, most critically, for the public interest, which is best served when reporters are free to do their best work. I say this humbly. When I was a boy, I read a biography of Joe DiMaggio called Lucky to Be a Yankee. That's the way I felt: lucky to be a reporter for the New York Times. I worked hard to meet its standards, and I'm happy to be judged by the stories I wrote for the paper—on Riverdell or any other subject. It was inevitable that I would have to take information in confidence occasionally. Every experienced journalist knows that's the way it is, and that without such sources many stories could not be told, or told as well. Are there abuses by reporters? Sure, just as there are lapses in any human endeavor. They should be aired, and they can be minimized.
But having lived the life, I'm not willing to join the current chorus of press bashers. There's good reason why virtually every state today provides some protection for reporters, just as they and the federal judiciary accord testimonial privileges to spouses, lawyers, doctors, priests and others.
My case prompted a strengthening of the New Jersey shield law for journalists, and in 1980, the state Supreme Court held 6 to 1 that the Sixth Amendment could not override that law simply "upon a defendant's unsubstantiated assertion" that a reporter's information could help him. "To a confidential source, to all confidential sources," Chief Justice Robert N. Wilentz wrote, "the promise of silence is absolute, and any breach is a total one."
I hope the day will come when Congress enacts a federal shield law for journalists and the Supreme Court, almost evenly split in 1972, revisits the issue of reporters' testimony. Until then I cast my lot with Judith Miller—who, because she was willing to go to jail for what she considered her professional obligations in the public interest, is not above the law.