In yet another court hearing before the jury is invited in to sit for the perjury trial of Santa Clara City Council Member Anthony Becker, Judge Javier Alcala continued to go through motions. On Oct. 18 at the South County Courthouse in Morgan Hill, Alcala went line by line through Becker’s testimony.
The testimony was from Becker’s interview with investigators on Dec. 20, 2022. The prosecution wanted a redacted version included. The defense argued none of the testimony should be included, however, if it is included, it should be in its entirety.
Deputy Public Defender Chris Montoya said some of the testimony goes directly to Becker’s “intent.” It is the prosecution’s “burden” to prove that Becker “intentionally lied.”
Montoya further argued that the question the prosecution asked Becker “was not a good question,” which also directly goes to Becker’s “intent” during his testimony.
Becker’s statements about 49ers influence and independent expenditures, the Santa Clara Police Officers Association’s (POA) site grandjuryreport.com and Stand Up for Santa Clara will be included.
Becker testified he also told a Mercury News reporter sometime between Oct. 7 – 9 about grandjuryreport.com because it’s “public” and something everyone saw.
At that time, Deputy District Attorney Jason Malinsky said, “we agree” the POA took the report from San Jose Spotlight.
Montoya said, “we don’t agree.” He said while there is no third-party culpability defense, there is proof that Mayor Lisa Gillmor leaked the report to the POA.
Testimony about how Becker he fixes his calendar will not be included, however, testimony about potential meetings with the 49ers will be included.
Becker’s testimony that he talked to then-City Attorney Steve Ngo on Oct. 6/7 will be included.
Malinsky tried to exclude Becker’s opinions about the civil grand jury’s “Unsportsmanlike Conduct” report, but the judge agreed to include it.
Speculation about who else might have leaked the report will be excluded.
Defense Argues Prosecution Failed to Disclose Evidence
Montoya also claimed that the prosecution did not turn over portions of a transcript from a Dec. 21, 2022 interview until Aug. 26, 2024.
He said the transcripts included Malinsky and Assistant District Attorney Brian Welch talking to the jurors about how Council Member Kathy Watanabe violated rules by showing the leaked civil grand jury report to her husband. They also reportedly told jurors that everyone was potentially involved in the leak.
Montoya argued that had the transcript been available, it could have changed certain rulings about evidence and document releases.
Malinsky said he provided the transcript once he realized it was missing and it brings no new evidence to the case. He also said the defense could have asked for it since the page numbers jumped.
Judge Alcala determined that the defense received the document in ample time.
49ers Campaign Spending Will be Included in Evidence
The evidence will include campaign spending documents filed by the 49ers in the 2024 election.
The defense argued that, among other things, it would prejudice a jury because they may not know the difference between an independent expenditure committee, which cannot have contact with a campaign and a candidate’s campaign funds.
As if proving the point, Deputy District Attorney Pablo Wudka-Robles said Becker “got millions from [the] 49ers.” He said that independent expenditure committees are simply a way for the 49ers to spend more money on a campaign.
Judge Alcala felt the admission of the campaign spending was relevant and allowed it.
Count 2’s Definition
Becker faces a misdemeanor charge of “willful failure to perform a duty as a public official.”
Malinsky asked the court to define the violation’s definition so the jury would be better informed.
Montoya said the defense is working on its version of the jury instructions and there was plenty of time to prepare.
The judge agreed and said the definition would be determined before jury selection.
Chandhok’s Testimony and Judicial Notice
The defense says there needs to be no judicial notice, especially since Chandhok, who is scheduled to act as a key witness for the prosecution, can testify to everything proposed in the judicial notice.
There was a lengthy discussion about Chandhok’s status as a member of the California Bar. The defense felt he could, in theory, explain the immunity he was given on the stand. The prosecution pressed the court to offer specific clarity through judicial notice.
The defense said the current wording presented presupposes certain aspects of the case to be facts when they are more complex than what is presented.
Ultimately, the judge decided to allow the two sides more time to agree on the wording of the judicial notice before agreeing to it.
Investigator Alan Lee’s Past
While investigator Alan Lee is no longer with the District Attorney’s office and will not testify in the trial, the prosecution still asked the judge to exclude any mention of alleged misconduct by Lee.
In a continuation of a discussion from the Oct. 9 hearing, the prosecution said investigator Fernando Ramirez Jr. only relied upon Lee’s work for passcodes to an Apple laptop and an HP laptop. Lee’s notes say he guessed the password for the Apple laptop after looking at passwords from the iPhone.
Montoya asked that the investigator’s statement be memorialized on the record for cross-examination purposes.
At that time, Malinsky backtracked saying what was presented in court was not Ramirez’s wording, but a summary.
The judge asked that the emails between Malinsky and Ramirez be shared with the defense.
Judge Makes Decision on Sealed Documents Submitted by Defense
Clearing up another matter from the last hearing, the judge determined that a sealed document the defense wanted a ruling on would need to be submitted in open court in front of the prosecution. The judge said that there were “too many issues” that needed to be addressed.
Montoya took the document back and did not file it with the court.
Court Schedule for Jury Trial Tentatively Set
The two sides also worked out the schedule for the court trial.
Potential jurors will receive questionnaires on Oct. 28 and the court will hear hardships.
Both sides will have a few days to look at the questionnaires and come up with a list of jurors they would like to dismiss. They’ll exchange lists and, if any names match, those jurors will be dismissed.
Voir dire will start on Nov. 1 with the goal of starting opening statements by Nov. 6 at the latest.
The court will “go dark” on Nov. 8, meaning there will be no trial. There will also be no hearing on Nov. 11, Veterans Day.
The trial will also pause the week of Nov. 25 to allow for potential Thanksgiving travel by jurors.
The prosecution expects that the trial will end around the first week of December.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
Judge Rules on Multiple Motions as Start of Becker Perjury Trial Nears
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
It is hard to know where to begin with this convoluted mess which DA Rosen has delivered to our city on the very eve of its Council elections OR where it will all end up — probably in the California Court of Appeal for a couple of years as that court tries to unravel all of the numerous complex, often novel constitutional, statutory, legal, political, factual, procedural, and evidentiary issues in this most unusual and mystifying of cases. The very first such issue which the Court of Appeal will probably have to try to resolve is whether or not the trial judge was correct on October 9, 2024, when he denied the motion of the accused to dismiss the accusations against him on the grounds of discriminatory prosecution.