On Not Naming Names

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

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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.


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