The fourth day of testimony in the perjury trial of Santa Clara City Council Member Anthony Becker ended with a bang. After the jury left the South County Courthouse in Morgan Hill Wednesday afternoon, Deputy Public Defender Chris Montoya aired his frustration at late discovery produced by the prosecution.
Montoya told the court that since jury selection began on Oct. 28, the defense had received 10 pieces of late discovery, including two new ones that morning.
“I have never been in a jury trial where this has been permitted,” said Montoya.
He asked that the court exclude all discovery turned over during the trial.
In response, Deputy District Attorney Jason Malinsky explained the two pieces of evidence turned over that morning. One was a custodian declaration. The other was an investigation done yesterday after a juror asked a question during the testimony of former 49ers chief of communications and public relations, Rahul Chandhok.
Malinsky said the “follow up” was the investigator getting a better understanding of how Signal worked.
Montoya said it was a violation of discovery rules to address a question from a juror.
“They don’t get to sit through jury trial and produce evidence late to fill a hole in their case,” said Montoya.
The judge later said it was not a violation.
Malinsky argued the investigation is always “ongoing.”
As to Tuesday’s late discovery, he said investigator Ben Holt did more research on the Chronicle’s first civil grand jury report article. The online version said “updated” with a timestamp just before 9 a.m. on Oct. 7, 2022. According to Malinsky, the new discovery shows a version published 14 minutes earlier.
Malinsky did not commit to whether he would use the report. Judge Alcala did not make a ruling.
Montoya asked for a jury instruction on the late discovery and destruction of evidence. Before Judge Alcala could respond, Malinsky mentioned a judicial notice from the prosecution he wanted read to the jury the next morning.
Malinsky said he intended to have it read after civil grand juror Karen Enzensperger’s testimony that afternoon but forgot.
The defense protested, saying it had only received the wording minutes earlier. Judge Alcala decided to rule on the wording tomorrow morning.
He did not address the issue of the defense’s jury instruction request.
Former Interim City Attorney Steve Ngo Testifies
Former interim Santa Clara City Attorney Steve Ngo began testimony on Wednesday. Ngo served as city attorney from April 2022 to early 2023.
He described his role as “chief legal advisor to the city council, including the mayor.”
Ngo said he received the “Unsportsmanlike Conduct” report from Assistant City Clerk Nora Pimentel mid-day on Oct. 5, 2022. City employees Nadine Nader, Cynthia Borquez and Elizabeth Klotz were included on the email.
Ngo said he wanted to draft a message to council before sending it because he knew the report was “politically charged.”
In cross-examination, Becker’s pro bono attorney, Grant Fondo, asked what Ngo meant.
Ngo said the “most obvious and fiercely debated” issue in Santa Clara was the role and policy of the 49ers in city business. He felt the existence of the report would “only fuel the conflict and heighten the polemic in the council.”
At 5:18 p.m. on Oct. 5, 2022, Ngo sent the report to interim city manager Rajeev Batra. He bcc’ed the mayor and council members. He said he used bcc to avoid an accidental reply all that would violate the Brown Act.
Ngo wanted his email to be “very clear” that the draft should not be disclosed until Monday, Oct. 10, 2022 at 10 a.m. He called it an “unequivocal” directive.
Through testimony, Malinsky pointed out that in the subject line, first line of the email and again in the email’s body, Ngo was adamant the report was not to be disclosed until the civil grand jury made it public.
“I’m usually not a bold, all caps, red font email writer,” said Ngo.
A Second Email to the City Council
During cross-examination, Fondo asked Ngo about other emails around Oct. 5, 2022.
Malinsky objected, citing motions in limine. The judge overruled the objection.
Ngo said he sent a second email a couple of days later.
When asked about the email, Malinsky objected again.
After a long sidebar, the jury was sent out for a break. The two sides stayed to litigate the matter.
Judge Alcala said Ngo could talk about the email and the second call from Becker that prompted the email but not the contents of the call.
Malinsky argued the “clean way” to do things, the way that “follows the rules,” would be to not allow either call and recall Ngo if clarification was needed in the future.
Judge Alcala stuck to his ruling.
Deputy District Attorney Pablo Wudka-Robles stepped in and asked the court to “revisit” the scope of what defense was allowed to ask Ngo. He said Ngo should not be allowed to offer his “expert legal opinion.”
Judge Alcala said he’d deal with it on a per question basis.
When the jury returned, Ngo testified he woke up on Oct. 7, 2022 and read the Chronicle’s article on the report. He spoke to Becker that morning and felt he needed to send a second email to the council and mayor because the “circumstances” had changed.
Fondo focused on a key sentence in the new email, where Ngo wrote, “I understand that we may read the statute a different way in light that the report is now public.”
Fondo asked if it was “advice” considering the new circumstances.
Ngo said he was addressing “a fact that I understand to exist since my last email.”
In redirect, Malinsky pointed to the sentence before and after that sentence, both of which said wait until Oct. 10, 2022 to disclose the report.
“You’re not saying it’s okay, go ahead and disclose the report?” asked Malinsky.
“That is correct. I was saying the opposite of that,” replied Ngo.
In redirect cross-examination, Ngo clarified further, saying it was clear that the contents of the report were public and he needed to address that.
“I understood that the prohibition on the disclosure may have not meant that much anymore,” Ngo said. “There was still a very clear standing mandate … on the city council and on a public agency.”
Ngo testified another council member reached out to him that day, but the court did not allow him to say who.
Ngo testified he had no personal knowledge that Becker disclosed the grand jury report to anyone before Oct. 10, 2022.
After all of the redirects, Judge Alcala asked a question of his own.
“So, your advice never changed?” asked Alcala.
Ngo agreed.
Prosecution Calls Maggie Carr of Milltown Partners
Maggie Carr, a partner and US managing director at Milltown Partners, was called to talk about her firm’s relationship with the 49ers and her working relationship with Chandhok.
Carr had received immunity to testify before the criminal grand jury but received no immunity for Wednesday’s testimony.
She said she used Signal to communicate with the 49ers and Chandhok occasionally, but it wasn’t much.
She was in Europe on Oct. 6, 2022 when Chandhok first messaged her. A few hours later, she joined a team Zoom call where former 49ers executive Larry MacNeil ran through the report and pointed out where the civil grand jury was wrong.
They also talked about media strategy. Malinsky asked if they were trying to get the report into the hands of a “friendly publication.”
Carr said they wanted to share it with Ramona Giwargis at the San Jose Spotlight.
Carr said they thought the Chronicle had it because the publication had reported “other things like this in the past.” They did not know for certain.
Chandhok did not tell Carr where he got the report.
“I got the sense he wasn’t supposed to have it,” said Carr.
In cross-examination, Carr confirmed her firm had a confidentiality agreement with the 49ers, something Chandhok did not confirm yesterday.
She also confirmed neither she nor her team members ever worked with Becker or communicated with him.
Soon after, Milltown Partners shifted focus from the 49ers to the ownership’s partial share of the Leeds United Football Club.
Civil Grand Jury Foreperson Offers Little Insight
Malinsky then called 2022 civil grand jury member Enzensperger, who helped pen the “Unsportsmanlike Conduct” report. She was also the “presiding” civil grand juror during the investigation into the leak and administered the oath to Becker.
She said Chandhok did not testify before the civil grand jury. The civil grand jury never discovered who leaked the report.
In cross-examination, Becker’s pro bono attorney, Hayes Hyde, asked how Enzensperger learned the civil grand jury was looking for members.
Enzensperger said she saw a post on Facebook. She assumed it was from the superior court, but she didn’t know for sure whose post it was.
In terms of how the civil grand jury operates, Enzensperger said the civil grand jury receives a complaint from “concerned citizens,” the complaints are reviewed and the jurors vote. The jury then gathers information, most of it is public. It can also access documents and ask for interviews.
Multiple grand jurors may draft multiple reports and work together to create a complete draft. The county counsel will review the draft. It’s then sent to the deputy manager of the civil grand jury.
Enzensperger testified the final draft goes to “concerned parties,” people referenced in the report or the report is about.
She said the “Unsportsmanlike Conduct” report was sent to the Santa Clara City Clerk. She did not believe it was sent to anyone else.
Questions about chain of custody for a draft, policies and procedures surrounding how a draft is handled, civil grand jury cyber security measures and civil grand jury training on confidentiality were objected to and sustained by Judge Alcala.
Enzensperger did not have to answer a question about how the dates of the release of grand jury reports were decided due to civil grand jury confidentiality.
Santa Clara IT Employee Testifies
Christopher Jackson, City of Santa Clara senior IT services manager, was the final witness of the day.
Jackson testified Ngo bcc’ed the city email addresses for the mayor and the council members, including Becker, when sending the civil grand jury report draft.
In cross-examination, Becker’s pro bono attorney, Shavon Henry, began to ask about the city’s email retention policy, but Malinsky asked for a sidebar.
After the sidebar and before the jury returned from its break, Wudka-Robles cautioned the court that the defense was exploring the possibility of pointing to Mayor Lisa Gillmor as the potential source of a different leak.
Henry argued Jackson’s investigation showed Gillmor was the only member of the council who downloaded, emailed or printed the report. Neither Becker or anyone else engaged in similar conduct.
Wudka-Robles called it “speculative.”
Judge Alcala said Henry could ask if Becker downloaded, emailed or printed the report. She could not ask about anyone else.
Back in cross-examination, Jackson testified litigation holds, a freeze on email deletion, are frequently put on city emails. The DA’s office had requested litigation holds for the email accounts of Cynthia Bojorquez, Ngo, Pimentel, Jose Armas, Hosam Haggag, the city clerk email, the mayor and city council members.
Testimony ended there with Jackson scheduled to return to the stand first thing tomorrow morning.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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
