David Alexander

Day 10 Becker Perjury Trial: Council Colleague and DA Investigator Hammer Home Prosecution’s Claims

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.

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“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.

Day 10 Becker Perjury Trial: Council Colleague and DA Investigator Hammer Home Prosecution’s Claims

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