Erika Towne

Day 14 Becker Perjury Trial: Case Handed to the Jury

The perjury trial of Santa Clara City Council Member Anthony Becker is now in the hands of the jury. Just after four o’clock at the South County Courthouse in Morgan Hill on Dec. 4, a deputy walked the 12 members of the jury back to the deliberation room.

The morning started with closing arguments. Judge Javier Alcala allowed “wide latitude” in closing arguments and overruled objections from both sides.

Deputy District Attorney Jason Malinsky started out the closing arguments.

Chandhok Takes Center Stage in Closing Arguments

In fact, Chandhok’s name appeared in closing arguments a lot.

“If you believe Mr. Chandhok, that’s it, proof beyond a reasonable doubt,” said Malinsky in his closing.

Malinsky tried to debunk the idea that Chandhok received anything from his immunity.

“There’s no leniency. There’s no deal,” said Malinsky.

He told the jury that it was in Chandhok’s best interest to protect Becker and protect the 49ers’ multi-million-dollar investment into getting him elected as Santa Clara’s mayor. He claimed Becker and Chandhok had a close relationship.

Montoya said Chandhok’s testimony said otherwise.

“They’re not so close as the picture that’s being painted by the prosecution,” said Montoya.

Montoya claimed Becker was of “no use” to Chandhok after losing the mayoral election, which happened around the same time Chandhok received immunity.

Montoya said surprising Chandhok with a search warrant at his home showed that even the prosecution didn’t trust Chandhok. Montoya talked about Chandhok’s mixed messages about where he got the report, specifically to his team.

“He can’t be trusted or believed,” said Montoya. “When you’re lying to your legal team and partners, you are not doing what’s in the best interest of your organization.”

He argued Chandhok faced criminal culpability.

“If nothing criminal happened, if nothing went wrong, why is everyone in a panic at the 49ers?” Montoya asked the jury.

Continued Investigation After the Indictment

Montoya also focused on the fact that the prosecution continued its investigation after Becker was indicted. District Attorney’s Office investigator Ben Holt interviewed Becker’s brother just two weeks before the trial started.

“Why, if you got your guy, is this continuing?” asked Montoya. “A year and a half later, and they still don’t have enough, and they know that, and they’re afraid of that.”

In rebuttal, Malinsky said the People were “thorough.”

“There’s no fear. This is being thorough. This is doing the job,” said Malinsky.

Thoroughness of the Investigation

Montoya questioned that thoroughness in his closing arguments.

He said the prosecution had “blinders on” early in the investigation and failed to close holes in the case, including who leaked the report to the San Francisco Chronicle.

In rebuttal, Malinsky said Becker was not charged with the Chronicle leak.

Montoya said even though Santa Clara City Council Member Kevin Park called Chandhok around the time the report was released and the two talked via Signal, exhibiting the same “suspicious behavior” Becker was accused of, the investigation into Park didn’t go far.

In rebuttal, Malinsky said as the suspicion of Becker increased, the suspicion of Park decreased.

Montoya also cited the destroyed audio recording made when Holt served the warrant at Chandhok’s home.

“When something has been destroyed, it causes you to question everything else,” said Montoya.

“No one’s hiding anything,” said Malinsky in rebuttal. “Investigator Holt could have not told anyone.”

Montoya criticized the two “experts” from the crime lab who conducted the data extractions.

“They don’t have the education to back up their opinions in this case,” said Montoya.

He focused on Fernando Ramirez Jr.’s lack of certifications.

“His certifications next year aren’t going to matter,” said Montoya.

He also mentioned Ramirez used an iPad to test evidence found on Becker’s iPhone and pointed out the two devices had different storage capacities and different versions of iOS.

“Mr. Becker deserves better than that,” said Montoya.

He then asked why one of Ramirez’s more experienced co-workers didn’t do the work.

In his rebuttal, Malinsky said the work was subject to peer and tech reviews. He said the criminalists didn’t do the work, the machines did and the “data speaks for itself.”

Using the Right Words

“This case is about the words. Questions matter,” Montoya told the jury.

Montoya said the questions needed to be “unambiguous,” “precise” and “leave no room” for confusion.

He singled out a question Malinsky asked Becker during the civil grand jury interview. Malinsky asked: “Before Oct. 10, did you do anything to deal with it?”

However, in the evidence presented to the criminal grand jury, there was a parenthetical in the transcript so it read: “Before Oct. 10, did you do anything to deal with it [The nonpublic copy of the civil grand jury report]?”

“This is what Mr. Malinsky wished he had asked,” said Montoya, pointing to the excerpt on display for the jury.

He called it an example of a “bad question” and said Becker should not be responsible for a “bad question.”

In rebuttal, Malinsky said while the questions could have had more words or he could have asked more questions, the questions that he did ask “couldn’t be any more easy to understand.”

Montoya also argued “leak” has multiple interpretations.

He said “public,” while normally easy to define, was also tougher in this case because the report went public in the media on Oct. 7, 2022, but public “officially” on Oct. 10, 2022.

“When there’s room for interpretation, that’s when it gets dangerous,” said Montoya.

Montoya said while it might seem like he was “nitpicking” words, his client was “on trial for words.”

Jurors Faced with a Difficult Decision

As they wrapped up their closing statements, both sides did their best to sway the jurors.

Malinsky ended his statement by highlighting the term “beyond a reasonable doubt.” He said it did not mean “beyond all doubt,” “beyond all possible doubt” or “beyond all imaginary doubt.”

He asked the jurors to take everything into account when making their decision.

“It is not all individual pieces of evidence. It is all of the evidence together,” said Malinsky.

Meantime, Montoya asked jurors not to “settle” for a “circumstantial case.”

“If you have two conclusions that are reasonable, you must find Mr. Becker not guilty,” said Montoya. “Tie goes to the runner, not the government.”

He outlined the differences between “reasonable suspicion,” “probable cause,” “more likely than not” and “clear and convincing,” and highlighted the difference of all three of the standards compared to beyond a reasonable doubt. He told jurors the evidence had to be sufficient to meet the highest standard of beyond a reasonable doubt.

He said the prosecution had not provided enough evidence to close all the gaps.

Continued Discussions About Jury Instructions

Before the jury heard closing arguments, the court had to finish up the jury instructions from the day before.

As it pointed out in closing arguments, the defense took issue with one of the questions Becker is accused of perjuring himself on.

The question, as it appeared in the jury instructions, read: “Before Oct. 10, did you do anything to deal with it [The nonpublic copy of the civil grand jury report]?”

Montoya objected to the parenthetical since that was not the exact question posed to Becker.

Malinsky said the question with the bracketed text was how it was presented to the criminal grand jury.

“If it wasn’t part of the question, it shouldn’t be in here,” said Montoya.

Malinsky said if the court took that part out, then more extensive testimony by Becker should be included.

Judge Alcala agreed to remove the brackets but add more testimony for context.

Montoya disagreed, but Judge Alcala said Montoya could not “have [his] cake and eat it.”

A longer portion of Becker’s testimony was included, and the brackets were removed.

Montoya asked the court of language in the instructions to point out that the only question under scrutiny for perjury was whether or not Becker did “anything to deal with it” before Oct. 10.

Malinsky protested.

“It’s not for the defense to decide what needs to be proved,” said Malinsky.

That’s when Judge Alcala lost his patience. He pointed out that they were supposed to have dealt with the jury instructions yesterday. He called it a “waste of my time” and said this was the problem with different attorneys dealing with the same issue because “we keep plowing the same field over and over.”

Once Malinsky had determined which extra testimony needed to be added, Montoya objected because Becker’s response was incomplete.

Judge Alcala called the missing portion “irrelevant” and said Becker added a lot of “gratuitous information.”

“He’s accused of lying in his answer, and that’s his answer,” replied Montoya.

Malinsky tried to jump in to take advantage of the judge’s mood.

“If [Montoya] doesn’t agree, we should just leave what was originally there,” said Malinsky.

Judge Alcala didn’t bite. He decided the closest thing to a compromise was to remove the brackets and add the extra testimony as Malinsky presented it.

Judge Alcala then readdressed the jury instruction about untimely discovery. He said after further thought, he believed the defense’s destruction of evidence jury instruction was a better option since it the audio recording was not “untimely” but rather lost.

He was prepared to switch to the destruction of evidence direction instead of the one about untimely discovery when Malinsky jumped in and asked for a string of minor changes so the defense’s text was “accurate.”

Judge Alcala got fed up and changed his mind. He decided to keep the instruction about the untimely discovery.

He refused to hear any more arguments from the defense.

Other Matters Discussed at the Trial

Judge Alcala quickly dealt with a motion for a mistrial submitted by the defense. The defense offered no verbal argument and neither did the prosecution. Judge Alcala denied the request.

Sensing that the judge was not keen on its chart of the levels of proof the prosecution needed to meet for a conviction, the defense submitted a new chart. Malinsky half-heartedly argued that charts were “inappropriate.” Judge Alcala approved the chart.
During closing statements, Montoya addressed the fact that Becker had four lawyers. He said Becker was entitled to a strong legal defense.
While Malinsky said he did not need to prove motive, he cited the 49ers’ independent expenditure committee for Becker. “It’s not that this is illegal … it’s perfectly legal,” said Malinsky. “But again, common sense. Personal experience. This money means something.”
Malinsky played a clip from Becker’s testimony and told the jury to listen to his “words and cadence.” Afterward, Malinsky said, “Listen to his words. He’s lying … He’s searching around. He’s trying to find the right words to wiggle out of it.”
The defense brought up the issue of how documents were labeled on a thumb drive provided by the prosecution. The two sides agreed to work out how the documents were named before the drive was handed over to the jury.
Criminal Code 252 was read to the jury with the phrasing “… specific intent and mental state …” after the prosecution determined it could not be “and/or” and one or the other needed to be selected. A fourth paragraph was also added because of the perjury charge.

The jury is now allowed to keep its own hours, taking breaks and lunch as they see fit. Judge Alcala asked that they keep close to the court schedule of 9 a.m. to 4:30 p.m.

They will meet until they reach a verdict.