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District Attorney Stephen Tyler subpoenaed reporter Gabe Semenza to a grand jury for the second time Thursday.
The Advocate’s lawyers filed a motion to quash, which called the order “pure intimidation, harassment and abuse of power.”
“Simply making an allegation does not mean it is proven,” said visiting San Antonio Judge Mark Luitjen.
Advocate special council Catherine Robb said the timing of the subpoena was clear – it came right after the Advocate announced it would release an analysis of records from Tyler’s office on Sunday. The first subpoena came after Semenza wrote stories critical of the district attorney’s office, Robb said.
The subpoenas alone were not evidence of the allegations, Luitjien said.
“I want some proof,” Luitjien said. “I can’t make that leap.”
“The person she should have called was sitting right across the table from her,” Luitjien told Victoria County District Judge Pat Kelly after the hearing.
Tyler represented his office and sat across from Robb.
Calling Tyler to the stand would have hurt the Advocate’s case more than it would have helped, said Laura Lee Prather, who represents the Advocate.
Prather and Robb are with the Austin law firm of Sedgwick, Detert, Moran and Arnold.
“Not a single fact was provided,” Tyler said after the hearing. The Advocate’s motion had no basis in law or fact, he said, and questioned the decision not to have Semenza testify.
But media outlets face a catch-22 when trying to present such motions, Prather said.
“Forcing the reporter to testify is exactly what we’re trying to avoid,” she said. “It completely defeats the purpose of the motion to quash.”
Since Semenza didn’t use confidential sources in his stories, he didn’t have any unique information, Prather said.
“That is the assumption of your editor, not mine,” Tyler said. Tyler added he would only ask Semenza to testify because what he would say is material and relevant.
Tyler also questioned the Advocate’s ability to report on the hearing and the issues surrounding it.
“We’re trying our hardest to stay out of this issue and report on it fairly,” Advocate editor Chris Cobler said.
Semenza was asked to testify before the same grand jury after he co-wrote a story in which then-city attorney David Smith accused Tyler of a cover-up in the investigation of his former chief of staff, Michael Ratcliff, according to the motion.
Tyler issued the second subpoena soon after the Advocate reported its staff is analyzing records from Tyler’s office regarding the disposition of criminal cases. The box of documents was delivered after a nine-month public records skirmish, ending just short of a May 12 courtroom hearing, the motion maintained.
Leslie Wilber is a reporter for the Victoria Advocate. Contact her at 361-580-6521 or e-mail her at lwilber@vicad.com.