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On Not Naming Names

The reporter was given a choice: Identify his confidential sources or go to jail. He chose jail

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.

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