Saturday , September 24 2022

DA’s conspiracy accusations could have ‘chilling effect’ on journalism, experts say

El Paso’s district attorney alleges in a recent court filing that the County Attorney’s Office and members of its staff, the El Paso Matters news organization and two local attorneys are conspiring to politically attack and remove her from office – a claim media experts say appears to be an attack on the press.

Lawyers for District Attorney Yvonne Rosales also accuse El Paso Matters – a nonpartisan, nonprofit online news organization – of deceptive fundraising practices and violations of federal law related to its tax-exempt status.

“The district attorney’s filing is an attempt by El Paso County’s top law-enforcement official to use the courts to intimidate and suppress a news organization whose coverage she doesn’t like,” El Paso Matters CEO Robert Moore said.

“This is an assault on the First Amendment that should alarm every person who values free expression and more than 200 years of democratic tradition in this country,” Moore added. “Our reporting on the district attorney has been fair, accurate, and necessary.”

The district attorney’s accusations are contained in a response to a removal petition filed by El Paso attorney Omar Carmona on Aug. 24. Rosales didn’t return requests for comment for this story, but in a statement last month called the removal petition a political tactic and an assault on the electoral process that put her in office.

Her response filed Sept. 2 also states that Carmona, attorney Justin Underwood and others “routinely appear in attack stories against DA Rosales” that include information “unlawfully obtained through the inappropriate use of the Texas Public Information Act.”

El Paso Matters has reported on a number of stories involving the district attorney, several of which Carmona cited in his petition for her removal.

Among them were stories reporting a decline of prosecution of domestic violence cases and the dismissal of hundreds of criminal cases over lack of prosecution by the DA’s office. El Paso Matters also reported on Rosales being censured by a district judge over inaction in the 2019 Walmart mass shooting case.

El Paso Matters filed public information requests with the district attorney, county clerk, district clerk and other government offices for its reporting.

“Unfortunately, there’s been an increase in attacks on news organizations and journalists for doing their jobs. This seems to be in the same vein,” said Sue Cross, executive director and CEO of the Institute for Nonprofit News, which supports the start-up and growth of nonprofit news organizations and leads its associated network of members, including El Paso Matters.

“They’re not alleging anything unfactual – mistakes – in the reporting,” she added.

Cross said she’s not surprised that a public official whose performance in office is being questioned is trying to deflect attention and pushing back on the news organization.

But to claim a conspiracy and, in the case of El Paso Matters, question its nonprofit status, goes beyond what she’s seen among 400 nonprofit news organizations across the nation, she added.

“This could have a chilling effect on journalism, but I feel confident the news organization can withstand the accusation and continue providing the public service it provides through its news coverage,” she said.

Nonprofit news organizations

A veteran journalist, Moore founded El Paso Matters in 2019 as a tax-exempt organization.

Most nonprofit news organizations qualify for tax-exempt status as educational organizations and must abide by some regulatory requirements under the IRS.

The organizations must be nonpartisan and cannot, for example, endorse candidates, Cross said.

“That’s very, very different from factually reporting on the performance of a public official after they’re elected,” she said. “That a citizen took action informed by the reporting about the district attorney doesn’t seem to come close to what’s being alleged.”

The filing also refers to a complaint filed with the IRS challenging El Paso Matters’ tax-exempt status. Loss of the tax-exempt status would essentially kill the news organization.

The Tax Exempt and Government Entities Division of the IRS takes such complaints, or referrals. The referrals are then evaluated by a revenue agent, who’ll decide whether to audit the organization. If an audit is considered warranted, the IRS would contact the organization directly. Referrals are kept confidential, the IRS website states, and no status updates are provided to those filing the complaints.

El Paso Matters has not been contacted by the IRS regarding the alleged referral, Moore said.

A copy of the complaint was published Thursday by El Paso blogger Martin Paredes on his El Paso News website. He did not say where he obtained the document.

The unsigned complaint of more than 100 pages includes mostly printouts of stories published by El Paso Matters and excerpts of the stories and their headlines, which the complaint alleges show bias, antagonism and political activism.

The complaint makes several accusations without offering substantiation, including that El Paso Matters colluded with the court to leak confidential information from law enforcement. No such material is identified in any of the stories cited in the complaint.

The complaint also cites the coverage of a July hearing on the Walmart shooting case when Rosales was criticized by 409th District Judge Sam Medrano Jr., who then issued a gag order preventing attorneys, law enforcement offices and witnesses involved in the case from discussing it with the media. 

The complaint claims that El Paso Matters journalists acted “illegally” by sitting in the jury box during the hearing and taking photos. Medrano directed the media to sit in that area since there was no jury in the proceeding, opening up gallery seating for victims and family members of those killed in the shooting.

The judge allowed photography and video recording in the proceeding. Other media members sat in the jury box and took photos and video of the hearing.

Freedom of information

Experts on public information also question the reference to the “unlawful” use of the Texas Public Information Act in the filing. The “The concept of the freedom of information is that the public is the master of the government and that the public has the right to know what the government is doing,” said Austin attorney Jim Hemphill, a board member and immediate past president of the Freedom of Information Foundation of Texas.

Hemphill said it’s the governmental bodies themselves who make the initial determination about releasing requested information under the law, therefore the requestor cannot unlawfully obtain documents under the Public Information Act.

“I can’t imagine what someone would mean by that,” said Hemphill, who specializes in media, open government and First Amendment issues.

Social media commentary

Rosales’ court filing also points to comments on the El Paso Matters Facebook page on Aug. 21. A post linked to its story about a public defender seeking the dismissal of criminal cases over lack of timely prosecution by the district attorney. 

A reader commented “recall?” on the Facebook post. Moore, using his personal profile, responded that Texas doesn’t allow recalls. 

Underwood commented that a petition for removal could be filed in court. In another response, Moore said that a jury would be reluctant to remove an elected official, which is why such actions are rare in Texas. Underwood then responded that it would be a tough fight, but “if the evidence is there, and you have the right lawyer…”

Moore did not respond to Underwood’s statement.

Screenshot of comments on the El Paso Matters Facebook page on Aug. 21.

Carmona filed his petition for removal three days later.

In a phone interview with El Paso Matters on Wednesday, Carmona called the conspiracy allegation an attempt by Rosales to distract from the facts, saying the district attorney was simply “grasping for straws.”

“It’s a very disgusting accusation to say there’s a big conspiracy,” Carmona said, adding he had never met or talked to Moore until after he filed the removal petition – and then only briefly to answer two questions Moore posed when covering the filing alongside an El Paso Matters reporter.

Carmona added that he was not encouraged or directed to file the petition by Moore.

“This is only about how (Rosales) has failed this community,” he said. “It’s about accountability.”

Defense attorney Omar Carmona at the El Paso County Courthouse on Aug. 24. (Corrie Boudreaux/El Paso Matters)

In December 2021, Carmona represented a murder suspect who’s case was dismissed after a district judge found the District Attorney’s Office acted with prosecutorial vindictiveness in seeking the death penalty, according to the El Paso Times. That came after the defendant sought his constitutional right to a speedy trial, the paper reported.

Underwood said he was withholding comment on the conspiracy allegations until after Tuesday, when a status hearing on the El Paso Walmart shooting is set.

Underwood was appointed by Medrano to represent the family of one of the victims of the shooting, Alexander Hoffman, regarding an email allegedly sent by his son to members of the media attacking former prosecutor Amanda Enriquez. Members of the Hoffman family have said the family was not behind the email, raising questions about its authenticity.

Rosales, a Democrat who took office in January 2021, replaced Jaime Esparza, who retired after 28 years on the job.

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