Erika Towne

Day 13 Becker Perjury Trial: Prosecution and Defense Rest

The prosecution and defense both rested their cases on Dec. 3, which means the perjury trial of Santa Clara City Council Member Anthony Becker is nearing its end.

Tomorrow, Judge Javier Alcala will read the jury instructions and oversee closing arguments before handing the case over to the jury.

The jury instructions will not include judicial notice about grand jury proceedings, as requested by the defense.

Destruction of Evidence Jury Instruction Will Not Be Included

Judge Alcala refused the defense’s request to include a jury instruction about the destruction of evidence. District Attorney’s Office investigator Ben Holt made an audio recording while serving a search warrant at the home of former 49ers public relations executive Rahul Chandhok. It was destroyed before it was entered into evidence.

Judge Alcala considered it to be an “untimely disclosure” since the prosecution notified the defense on Oct. 31, 2024. He agreed to allow a jury instruction about an “untimely” evidence disclosure.

Malinsky argued the decision was a remedy that did not merit because there was no “prejudicial violation” in the destruction of the evidence.

Judge Alcala stood by his ruling.

He also rejected the other items on the defense’s list of evidence received after the start of the trial.

Other Jury Instruction Rulings

The issue of third-party culpability also reared its ugly head. The court will include California Criminal Code 373, which tells jurors others “… may have been involved in the commission of the crime[s] charged against the defendant … you must not speculate about whether (that other person has/those other persons have) been or will be prosecuted.”

In the California Criminal Code, there is also a line that says, “The instruction does not apply to the testimony of …” and then includes a space to add names. The defense asked that the names of Elena Caple, Maggie Carr, Chandhok, Anne Moriarty and any other witness who received immunity to testify be included.

Judge Alcala denied the request. He said none of them committed perjury or had an obligation not to leak the report.

During a discussion of California Criminal Code 252, the defense objected to the judge’s decision to use “… specific (intent/ [and/or] mental state) …” in jury instructions. The defense wanted the phrase “mental state” removed.
The defense objected to Judge Alcala’s inclusion of portions of California Criminal Code 371, which covers suppression and fabrication of evidence. The defense argued there was no evidence Becker engaged in witness tampering and the jury instruction was “prejudicial.”
In the case of perjury, the jury instructions must include the portions of testimony where the defendant is accused of perjuring themselves. Both sides agreed to the testimony included.
The defense objected to Judge Alcala using the Malinsky’s version of the jury instruction of count two, saying it was not an “accurate depiction of law.”

Holt’s Testimony Wraps Up

In the morning, Holt gave what could be the most damning piece of testimony to date. A juror asked for a detailed report about Holt’s investigation, which allowed Holt to talk for several minutes about the evidence and his opinions of why Becker was guilty.

Montoya objected several times.

“This whole narrative is leading,” he said at one point.

Judge Alcala overruled the objections.

Montoya did his best to recover in re-cross.

Holt testified Chandhok’s goal was to protect Becker.

“The 49ers’ primary intent was getting Becker elected to mayor,” said Holt.

Montoya asked how Chandhok’s immunity deal protected Becker. He also pointed out through testimony that Chandhok testified after Becker lost his bid for mayor.

Second Search Warrant Served on Becker

Holt and his team served a second search warrant on Becker on May 3, 2023, the same day Becker was arraigned on the perjury charges.

Montoya asked if Holt wanted to search Becker’s home without Becker present.

Holt said the team wanted Becker there; that’s why the warrant was served at 6:40 a.m.

“We did not want to interfere with him getting to court,” said Holt.

When asked what time Becker’s hearing was, Holt did not know.

In redirect, Malinsky asked Holt what new evidence was found to warrant a second search warrant.

Holt said evidence showed Becker had a “burner” phone. A witness said Becker used it to communicate about the grand jury report.

On re-cross, Montoya pointed out the DA’s Office still had Becker’s phone, so he needed a new one.

Holt agreed but said Becker had a second phone with a different number and a third phone that was his city phone.

During the search, investigators seized four cell phones, one of which belonged to Becker’s husband, two tablets and three laptops.

When asked what evidence was found on those devices, Holt said they could not get into them because Becker denied them access.

Holt agreed it was Becker’s right to refuse. At that point, Becker had been indicted and had an attorney. Investigators could not brute force their way into the phones.

California’s Shield Law

Montoya also tried to show the investigation was not thorough enough. He asked Holt if any reporters had been interviewed for the investigation.

Holt said no because the Shield law prevents them from compelling reporters to answer.

Montoya said “asking” is different from “compelling.”

Holt said there was a brief discussion, but the idea was “ridiculous.” The team determined that “out of respect” for the press and its role as the “fourth branch” of the government, they did not ask.

Montoya asked Holt specifically about the leak to the Chronicle since they knew Becker did not leak it to them.

Holt again cited the Shield law.

When Montoya asked if there was evidence that someone else leaked the report to the Chronicle, Malinsky objected. It was sustained.

Montoya then said that even though the investigation is “ongoing,” you still haven’t made an attempt to contact reporters.

“I would do the exact same thing today,” said Holt. “I still would not contact the press and ask them to reveal a source.”

During the morning break, Malinsky asked the court to include judicial notice about the Shield law since it would explain why the jury was not hearing from members of the media.

Montoya objected on several grounds and said the Shield law does not mean they cannot ask a reporter, just that the reporter has rights.

Judge Alcala agreed to issue the judicial notice.

Malinsky called the defense’s line of questioning “misleading.” Malinsky asked Judge Alcala to allow him to talk about the pretrial subpoena to the Chronicle and the fact that lawyers fought it.

“[The] defense’s action proves our decision was correct,” said Malinsky.

Montoya argued the prosecution never asked the Chronicle. Further, he said, the prosecution could have issued a subpoena for when the Chronicle’s first article about the report was posted online. While other sites show a post’s original upload time, the Chronicle’s site only shows an updated time.

He said the prosecution “didn’t want that evidence.”

Judge Alcala felt the Shield law covered it and said they could discuss in closing and let the jury decide.

In the afternoon, Montoya asked for added wording to the Shield law text read to the jury.

Judge Alcala determined if he added the defense’s wording, he would also have to make note of the Chronicle’s subpoena and how it was quashed.

Montoya withdrew the motion.

No Signal Data for Star Witness Rahul Chandhok

At one point, Holt was asked about Signal data and account info for Becker and Santa Clara City Council Member Kevin Park. The DA’s Office was able to obtain subpoenas and data for both accounts from Signal.

However, when the same subpoena was served for Chandhok, Holt said Signal did not have account information for Chandhok.

He had no explanation for why that was Signal’s response.

Through questioning, Montoya pointed out that Chandhok had immunity and Becker and Park did not.

Other Details from Holt’s Testimony

After both sides rested, the defense filed an 1118.1 motion. It asked the judge to acquit Becker on one or more of the charges based on “insufficient” evidence.

The motion was denied.

Also in court:

Holt said 45 or more people were interviewed in the investigation into the leak of the civil grand jury report.
When asked why no search warrant was served on Park, Holt said, “As the evidence against Mr. Becker grew, the evidence and probable cause for Mr. Park kind of died.”
Holt testified there was “nothing incriminating” and “nothing exculpatory” on the deleted audio recording from Chandhok’s home. He also repeatedly said he never listened to the audio file.
When Montoya asked about the deleted recording, he drew out through testimony that Holt never checked to ensure Chandhok was talking to his lawyer. If Chandhok was not talking to his lawyer, the conversation was not privileged.
Malinsky entered a new document into evidence during redirect, leading to an objection from Montoya, who said the purpose of cross-examination is not to correct things. Judge Alcala overruled the objection.
While Becker called Chandhok from a 510 number that turned out to be his husband’s phone, Holt testified there appeared to be nothing wrong with Becker’s phone. Becker made calls from his personal phone before and after the call to Chandhok.
A chart the defense was told to pull from opening statements with the opportunity to bring it back in closing statements is now under scrutiny. Malinsky argued that it had “serious inaccuracies.” Judge Alcala decided to look it over and make a ruling tomorrow, on the day of closing statements.

The defense has filed a motion for a mistrial. It will be decided tomorrow.

View Comments (1)

Observation says:

December 4, 2024 at 6:06 PM

Suds,

You should have immediately reported the likely potential crime Anthony Becker told you firsthand. You did not want to hear more as you had heard too much already, leaving you in an ethical/moral dilemma; a real Catch-22. You made the wrong choice covering the crime. It was a dereliction of your literally sacred duty and oath to us citizens.

If Becker is convicted, I believe your actions should be reviewed by District Attorney Rosen for the potential crime you may have committed by concealing what Becker told you.

“In California, an accessory to a crime is someone who helps, encourages, or aids in the commission of a crime, without directly participating in it. This can include helping before, during, or after the crime.” Those terms are purposely ambiguous.

What sucks is that Becker’s trial got delayed past the recent election. Suds, you would not have been elected if this had come out before the election. If not for the delay of the trial and all the money the 49ers poured your way you would NEVER have been reelected.

Your actions have truly tarnished our city.

To the writer, Erika Towne, who is covering Beckers trial, I want to give you a complement on your detailed reporting, but even moreso that you have been very objective and not taking one side or the other. The press needs more writers like you. I appreciate you being objective despite internal pressure you may have had at the SVV for obvious reasons. I am not a big fan of SVV because of very biased reporting, editorials, and the support for Jed York and the damage he has done to our city. Again Erika, good work and keep it up. So refreshing to read objective and well written reporting.