Two bombshell witnesses took the stand Thursday in the perjury trial of Santa Clara Vice Mayor Anthony Becker.
First, Council Member Suds Jain testified that Becker told him that he gave the civil grand jury report to The Weekly. Next, Ben Holt, an investigator for the district attorney’s office, revealed that, despite Becker’s claims to the contrary, Becker deleted Signal just a few minutes before meeting with investigators.
Jain took the stand to recount his criminal grand jury testimony. During that testimony, Jain told Deputy District Attorney Jason Malinsky, the prosecutor for the case, that Becker confessed to him giving the report to Carolyn Schuk, the associate editor at The Weekly.
“It was very clear to me that I was not supposed to talk about it or send it to anybody; it was essentially confidential … it would have been better if he hadn’t told me. It put me in a difficult position,” Jain said.
Following Becker’s confession, Jain told the court he didn’t share what Becker told him with the city attorney, the district attorney or the civil grand jury. Nor did Jain bother following up with Becker, adding, “I wish he hadn’t told me.”
Jain maintained that Becker never specified when he gave the report to Schuk, adding that he “assumed” it was during the confidential period prior to its release.
The definition of “leak” was at issue.
When Malinsky originally asked Jain whether Becker leaked the report to anybody else, Jain said, “Just Carolyn.” However, in court Thursday, Jain said he understood some people consider a leak to be the “first” person to hand over confidential material.
Becker’s lawyers have repeatedly tried to breach the topic that Becker could not have “leaked” the report if it was already public. Judge Javier Alcala has repeatedly sustained objections to such a defense, typically on grounds that it is irrelevant to Becker’s charges.
In his cross-examination of Jain, Deputy Public Defender Christopher Montoya tried to solicit testimony from Jain that seemingly painted a picture that the rules regarding the report’s handling were vague. Montoya attempted to establish that Steve Ngo, the city’s interim city attorney at the time, failed to clearly communicate the rules of what council members could do with the report.
A tide of objections from the prosecution stymied the tactic.
One juror asked why a reporter would need to get a public report from Becker. Jain responded that maybe the reporter didn’t know where to find it.
Following Jain’s testimony, Holt took the stand. He detailed Becker’s interrogation, with Malinsky playing audio of it for the jury. During the interrogation, Malinsky repeatedly asked Becker what methods he used to communicate with various people. Becker denied having Signal despite records presented Thursday showing he deleted it just seven minutes before the interrogation.
Signal is incapable of providing records of what users transmit on its app. Consequently, the prosecution was unable to show that Becker used the app to transmit the report.
As part of the investigation, Holt told the court he issued several preservation orders. These orders freeze the information related to several accounts, including Signal, essentially preserving the information associated with them. In Signal’s case, it showed when Becker deleted the app.
“Do I need a lawyer?” Becker asked at one point on the audio of the exchange played for the jury.
Malinky replied that he cannot advise Becker on such matters but told him he was free to leave whenever he wanted. Becker stayed.
Holt told the court that he was later able to access Becker’s phone because he saw Becker enter his passcode during the interrogation.
Using the internet archive The Wayback Machine, Holt said he determined that The Weekly was the first to publish an article containing information from the civil grand jury report, while San Jose Spotlight was the first to publish the report.
From the contents of articles in The Weekly and The San Francisco Chronicle, Holt said it was clear those newspapers had a copy of the report.
Data extracted from Becker’s phone showed the first text thread with Schuk came shortly after his testimony to the criminal grand jury, more than a month after the report’s release, indicating he deleted previous threads. Several of Becker’s other text threads went back much further.
Finally, after the jury left, Alcala again raised concern about one of the jurors, saying she is “exhibiting bizarre behavior.” Alcala previously warned the same juror to stay awake during the trial.
“She is clearly not paying any attention,” he said. “It looks like she is not doing her duty … I am beginning to have my doubts about her.”
Court resumes Friday morning with Holt’s testimony.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
Day 9 Becker Perjury Trial: Criminalist Continues Testimony on Data Extraction
Day 8 Becker Perjury Trial: “Expert” Witness Takes the Stand
Day 7 Becker Perjury Trial: Civil Grand Jury Overseer Testifies
Day 6 Becker Perjury Trial: Prosecution Enters Becker’s Grand Jury Testimony
Day 5 Becker Perjury Trial: Damage Control And Campaign Financing
Day 4 Becker Perjury Trial: Fmr. City Attorney Steve Ngo Take the Stand
Day 3 Becker Perjury Trial: Defense Tries to Paint Chandhok as the Focal Point
Day 2 Becker Perjury Trial: Chandhok Testimony Resumes
Destroyed Evidence Discussed on Morning of Becker Perjury Trial
Day 1 Becker Perjury Trial: Opening Statements, Chandhok Testimony
Jury Selected in Becker Perjury Trial
Judge Rejects Claims of Political Conspiracy Against Vice Mayor Anthony Becker
Jury Selection Begins in Becker Perjury Trial
Judge Wraps Up Majority of Motions in Becker Perjury Trial
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
David,
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From your reporting on the proceedings some readers who are not familiar with the facts of this case might think that Becker did not transmit the draft report until it was made public however according to Rahul Chandhok he transmitted it to him before it was public and according to Suds Jain he transmitted it to Carolyn Schuk of this publication before it was public. It was first made public by the San Jose Spotlight but this was after this publication published a very detailed article that made clear that it had already received the report before it was made public by the Spotlight. This was all obvious even on that morning to anyone paying attention way back then.