Civil Grand Jury Communications Remain off Limits in Becker Trial

The judge in the perjury trial of Santa Clara Vice Mayor Anthony Becker ruled on three important subpoenas while also giving insight into how the court is likely to view one of the defense’s tactics.

Judge Benjamin Williams struck down a motion that would have compelled The San Francisco Chronicle to turn over a source and another that would have given the defense access to grand jury communications. Finally, he upheld the subpoena that seeks to get to the bottom of who created a Facebook page/ads related to the case.

Sarah Burns, the lawyer representing The San Francisco Chronicle, implored the judge to strike down the subpoena, citing shield laws that protect media outlets from being compelled to disclose sources. Further, she argued, Becker did not know whether the report was leaked to The Chronicle, saying it was “speculative.”

She said what was at issue is “the heart of the First Amendment.”

“He has not shown that compelling this material would help his case,” she said. “Just providing information to a reporter doesn’t make it likely it will be publicly known.”

But Becker’s lawyer, Grant Fondo, told the judge that the defense was not seeking the identity of the leak, just the timing of it and that there was a leak. Such information is critical to establishing a timeline, he said.

The defense is entitled to “bat down” as many of the leaks as possible, Fondo said, showing that Becker was not the source. For instance, the court already knows that one of the Santa Clara City Council members leaked the report to her husband, so the question about who else had access to it is relevant, Fondo said.

Deputy District Attorney Jason Malinsky took issue with the defense’s tactic to point fingers at other possible leaks.

“Just because someone else did something wrong, doesn’t absolve him,” Malinsky said.

Malinsky said the situation isn’t similar to a murder case, where, if Becker could show that someone else murdered the victim, it would exonerate him. It is more akin to a speeding ticket, he argued. Someone else speeding doesn’t make it OK for Becker to speed.

Williams didn’t buy the defense’s reasoning, especially since Malinsky told the court the prosecution wasn’t claiming Becker leaked the report to The Chronicle. The judge cautioned Becker’s lawyers that the whole “well, others leaked it too, so Becker did nothing wrong” argument would not fly with the court.

Why other leaks are relevant gets into whether the information was publicly available as opposed to “confidential” and whether Becker knew that. If he knew others already had the report, the argument goes, he didn’t “leak” it, since it was public and no longer confidential. Further, if he didn’t leak it, he couldn’t lie about leaking it.

The defense also sought to gain communications between civil grand jurors and other third parties. Fondo said the purpose of obtaining that correspondence was not related to the juror’s work on the Civil Grand Jury. Instead, it was to establish relationships between the jurors and other key players. For instance, he said, if one of the jurors was “best friends with Lisa Gillmor,” it would be relevant.

Still, Williams didn’t see it that way, ruling that such communication still falls under the purview of Civil Grand Jury materials. If the defense wants to obtain them, it needs to solicit the judge that presided over the grand jury.

Finally, Williams upheld a subpoena that would compel Meta to unmask an anonymous creator of a Facebook page/ads that also had information from the report before it was released. Meta will have six days to notify the creator, and that creator will be able to file a motion to quash on grounds of personal privacy. Failing that, Meta must make the information available.

While the judge repeatedly admonished the defense against hanging its hat on whether others leaked the report too, he also shut down some of Malinsky’s objections. Proving “third-party culpability” — i.e., that others, and not Becker, leaked the report — is a viable strategy.

Becker’s trial is slated to begin July 29.