The judge overseeing the perjury trial of Santa Clara City Council Member Anthony Becker ruled on several motions on Oct. 9, giving the public a better idea of what evidence and arguments will be presented in court.
Defense’s Motion to Dismiss Denied
Judge Javier Alcala first heard a motion to dismiss at the South County Superior Courthouse in Morgan Hill. The defense argued that the prosecution failed to present evidence to the criminal grand jury that would have negated Becker’s guilt.
“The [p]rosecution provided high-level sanitized summaries of evidence showing that someone else may have leaked the report, leaving out critical details showing that Mayor [Lisa] Gillmor and Councilmember [Kathy] Watanabe had a habit of leaking confidential information and a motive to do so again here,” wrote Becker’s attorney, Deputy Public Defender Chris Montoya.
The defense said the investigation into Becker was “abnormally aggressive,” the prosecution failed to investigate potential leaks by Gillmor and Watanabe and did not pursue investigations into “earlier and subsequent leaks attributable to Mayor Gillmor and/or Councilmember Watanabe.”
The prosecution’s response was simple.
“Defendant was indicted because of the overwhelming evidence of his guilt, not because the People withheld exculpatory evidence or improperly targeted [d]efendant,” wrote District Attorney Jeff Rosen in the opposition.
Judge Alcala denied the motion to dismiss. He said that the District Attorney’s office provided “sufficient” evidence and it did not “single out” Becker.
Leak to the Chronicle a Point of Contention
Exactly who leaked the “Unsportsmanlike Conduct” report to the San Francisco Chronicle became a major bone of contention as the judge heard motions in limine (pre-trial motions).
While the prosecution admits more than one party leaked the report and the Chronicle had a copy before it was supposed to, it would not “stipulate” that Becker did not leak the report to the Chronicle.
Montoya argued the prosecution plans to use a timeline to show the report first appeared on the Silicon Valley Voice (this publication), followed by the Chronicle and then the San Jose Spotlight. He worried that by not stipulating the Chronicle received the report from someone else, the jury could assume Becker may have also leaked the report to the Chronicle.
Deputy District Attorney Jason Malinsky stood firm.
Montoya argued there is “danger” in speculation.
Judge Alcala said it might be cleared up in an instruction to the jury.
Third-Party Defense Denied
In perhaps the biggest ruling of the day, Judge Alcala agreed with the prosecution that a “third-party defense” should be excluded. Becker’s defense appeared to be poised to argue that Gillmor and Watanabe also leaked the report and had a history of leaking confidential information.
Montoya said while similar crimes were committed, only Becker was prosecuted.
Malinsky disagreed. He said the only issue on trial was who disclosed the report to the 49ers, the Silicon Valley Voice and the San Jose Spotlight.
“This is not a trial about what Gillmor and Watanabe may have done in addition to the [defendant],” wrote Malinsky in a court filing. “Should Gillmor and Watanabe have committed the same or similar crimes as [d]efendant does not absolve [d]efendant of his crimes.”
Judge Alcala agreed and excluded the third-party defense. The judge also agreed to exclude allegations of past leaks to the Chronicle by Gillmor and any other alleged leaks by Gillmor or other council members.
He said the defense could revisit the issue if it provides new evidence.
Discussion About Civil Grand Jury Limited
Several motions by the prosecution limited the discussion about the civil grand jury.
The defense cannot question the “competency” of the 2022 civil grand jury, which penned the “Unsportsmanlike Conduct” report that Becker is accused of leaking to the 49ers.
“… [T]he question is not whether the tribunal has performed the duty perfectly – the question is whether the tribunal had the authority to perform the duty and administer the oath that the defender violated,” wrote Malinsky.
Grant Fondo, Becker’s pro bono attorney, argued that if there was no quorum, then a grand jury was not competent.
Fondo said two civil grand jurors recused themselves from the “Unsportsmanlike Conduct” report, but no one will say if those same jurors served in the investigation into the leak of that report.
Judge Alcala offered a narrow ruling granting the prosecution’s request.
Questions about bias or conflicts of interest of the 2022 civil grand jury members will be excluded except in the cross examination of 49ers’ investigator Tim Hoekstra. Those will be taken on a question by question basis.
Malinsky also sought to exclude all emails and testimony that held information about the 2022 civil grand jury members.
Montoya argued if an email from Hoekstra that included information about the jurors is entered into evidence, then defense has the right to cross examine.
Judge Alcala did not rule but warned the prosecution that whatever it presented would open the door to cross examination.
Other rulings in regard to the civil grand jury include:
- The defense can ask questions about the report and reaction to it, but cannot “grade” it in cross examinations.
- The defense can cross examine witnesses 2023-24 civil grand jury foreperson Karen Enzensperger and court employee Britney Huelbig about the general procedure of the grand jury and distribution of the report.
- Neither side will reference the 2024 civil grand jury, its members or its investigations.
- The defense will be allowed questions or references “… to the opinion that the Santa Clara County civil grand jury operates to benefit Mayor Lisa Gillmor,” but only in regards to the “Unsportsmanlike Conduct” report.
- The prosecution tried to preclude the argument that the timing of the report was politically motivated, but the judge denied the request.
Narrowing the Avenues for a Defense
Many of the motions filed by the prosecution appeared to be aimed at narrowing exactly how Becker’s defense could play out.
The prosecution tried to exclude evidence designed to “solicit sympathy.”
While Judge Alcala agreed to exclude evidence about how a verdict would affect Becker’s family, employment or other parts of his life, the judge did not block Becker from talking about how he felt about his arrest, indictment or the search warrants served at his home.
The prosecution also tried to prevent the defense from saying that Becker could not have willfully violated his duty if the civil grand jury report was already “public.”
Fondo pointed to testimony from interim Santa Clara City Attorney Steve Ngo, who said he wasn’t sure if a document wasn’t considered “public” once it was in the media. Fondo said it would be unfair to hold Becker to a higher standard than a trained attorney.
The judge deferred ruling in case Becker testifies.
The court will wait to decide if references to alleged misconduct by former Santa Clara County criminalist Alan Lee will be precluded. While Lee is no longer with the District Attorney’s office, Becker’s lawyers want assurances that current criminalists are not making decisions based on Lee’s past work.
Judge Alcala will issue a judicial notice that says Rahul Chandhok, the former chief of communications and public affairs for the San Francisco 49ers and key witness for the prosecution, invoked his Fifth Amendment right and did not testify to the civil grand jury. Chandhok was compelled to testify to the criminal grand jury and received immunity.
Among the other rulings:
- The cross examination of Chandhok can include questions about who gave him the report.
- Only statements made by Becker and admitted by the People will be used as evidence unless there is an exception to the evidence code.
- References and claims of “selective prosecution” will be left out by the defense except during cross examination of the District Attorney Investigator Benjamin Holt about the leak to the 49ers or a potential leak by someone else to the 49ers.
- The defense can ask Holt which reporter leaked the civil grand jury report. Other cross examination will be limited.
- The defense cannot allege “improper motives” by the District Attorney.
- A ruling about any references to the “legality” of Becker’s interactions with law enforcement was deferred.
- Both sides will exclude prior arrests or misdemeanors by witnesses.
- Neither side can use photos, documents or charts in opening or closing statements unless they are first approved by the other side.
Defenses Motions in the Becker Perjury Case
During the defense’s motions, Montoya asked to file a motion under seal that he said included privileged information between himself, Becker and Chandhok. Montoya was worried that if it was not deemed privileged, it would become public. He would rather withdraw the item to protect the attorney-client privilege information.
The judge agreed to look at the item before it was filed, much to the chagrin of Malinsky who argued that if it’s not privileged, he has a right to it.
Judge Alcala admitted that it was “a little unusual.”
The defense’s witness list includes many familiar names, including Jude Barry, Gillmor, Karen Hardy, Robert Haugh, Quentin Kopp, David Mariani, John McLemore, James Rowen, Jeremy Schmidt, Kirk Vartan and Karl Watanabe.
Malinsky wanted reasoning since he didn’t see the witnesses’ “relevance.”
Montoya told the court the defense had met its “burden.”
Judge Alcala agreed and said the defense would alert the prosecution when it calls its witnesses.
Other defense motions before the judge passed quickly, including:
- Malinsky will not be allowed to represent himself as the “People” if it gives the impression that he is representing himself and the jurors against Becker.
- Witnesses will not be allowed in court except when testifying. The only exception is investigator Holt.
- Anne Moriarty’s statement about statements made by Chandhok is admissible. Moriarty works for Milltown Partners, a strategic communications firm that worked with the 49ers in 2022.
- Bruno Kirschbaum’s testimony about a closed session incident between Watanabe, Gillmor and Becker will be excluded.
- Al Guido’s phone records will be excluded.
- Testimony from unavailable witnesses will be excluded.
- Both sides will inform witnesses about the court’s pre-trial rulings before their testimony.
- Jurors will be excused for cause if they appear “ambivalent about ability to be impartial.”
Connection to the Silicon Valley Voice
The prosecution will admit evidence that shows the Silicon Valley Voice’s (this publication’s) connection to the 49ers. The defense asked for clarification on the exact documents before the judge rules.
The evidence is expected to include emails between Silicon Valley Voice Editor Angela Tolliver and Chandhok sent on Oct. 6, 2022 and text messages between Silicon Valley Voice publisher Miles Barber and Chandhok.
A text exchange between Silicon Valley Voice reporter Carolyn Schuk and Chandhok will also be included. It reads:
Schuk: “I’m buying coffee next week. Or (champagne emoji).”
Chandhok: “Angie send you my statement and the additional info?”
Schuk: “Oh yes – that’s what we needed to shove Lisa’s October surprise right up her ass.”
The prosecution says these exchanges show the “collaborative relationship” between the 49ers and Silicon Valley Voice and against Becker’s political rival Gillmor.
The prosecution says emails will show Chandhok was protecting Becker as the source of the leak.
Becker Trial Continues Next Week
Both sides are back in court next week to continue pre-trial motions.
Jury selection begins in the last week of October.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
Potential Motion to Dismiss in Becker Trial
Becker Trial Jury Selection Starts in Late October
Becker Trial on Standby, Small Business Owner Kirk Vartan Subpoenaed
No Settlement in Becker Trial; Becker Team Withdraws Subpoenas
Becker’s Attorneys Want to Investigate DA’s Office for 2020 Grand Jury Report Leak
Mayor Gillmor’s Response to PRA Request Causes Judge to Reverse Rulings
Impacted Court System Forces New Delay in Becker Trial
Judge Denies Series of Defense Motions as Start of Becker Perjury Trial Nears
Jude Barry: The Related Company Lobbyist Subpoenaed in the Becker Trial
