Before the opening statements in the perjury trial of Santa Clara Council Member Anthony Becker, the two sides had to work out a late motion filed by the prosecution. On Nov. 6, they met in South County Courthouse in Morgan Hill sans jury to talk about a motion made by Deputy District Attorney Pablo Wudka-Robles.
Wudka-Robles asked the court to exclude a recording made on Jan. 12, 2023, when investigators served a search warrant at the home of former 49ers chief of communications and public relations, Rahul Chandhok.
According to the District Attorney investigator Ben Holt, just prior to serving the warrant, he turned on his iPhone or an audio recorder to record officers serving the warrant. DA investigators do not have body cameras.
While the recording was made, it was never submitted to the defense and was subsequently lost and destroyed.
In his filing, Wudka-Robles moved to have the evidence excluded from the trial, saying it was not “relevant.”
“None of the evidence contained in the recording was in any way material to the facts at issue in this case,” wrote Wudka-Robles in his motion. “No witness statements were taken and the knock notice is not relevant to the issues at trial. The only other statements, if any, potentially contained on the recording would be statements made by Mr. Chandhok to his attorney—privileged statements which neither the People nor defense would have been permitted to hear.”
Wudka-Robles wrote the lack of evidence was not proof of the “quality” of Holt’s investigation.
What Did Holt Record?
During the search, Chandhok asked to call his attorney. Holt had a bedroom cleared and Chandhok was allowed to close the door for privacy. An officer stood outside the door.
Holt admitted while the room was clear, there was a sliding door between the room and living room.
While Chandhok was on the phone, Holt continued his search. At some point, he realized he could hear Chandhok. He moved away but can’t remember if he turned off the recording.
Chandhok’s statement was different. Chandhok said he stood in the sliding door’s doorway and spoke to his attorney. He moved to the living room couch mid-conversation.
He said an officer was in his line of sight for most of the conversation. He did not try to conceal his conversation.
Defense Files Several Objections to Motion to Exclude
Deputy Public Defender Chris Montoya argued attorney-client privilege does not apply if other people were present to hear the phone call.
Montoya also argued that “exculpatory” evidence might have been destroyed and that the issue involves the prosecution’s two key witnesses, Holt and Chandhok, and is thus relevant to the case.
Holt testified that as he was leaving Chandhok’s home, he called Deputy Public Defender Jason Malinsky, the lead prosecutor in the Becker trial, to say he may have recorded a privileged conversation. Holt suggested handing the audio over to a third party.
“It was clear to me that this needed to be reviewed by someone other than me and someone other than Mr. Malinsky. I just didn’t know who,” testified Holt.
Holt said he suggested another attorney in the office who handled privileged information. Ultimately, they agreed more research needed to be done.
In his filing, Montoya criticized Malinsky for the misstep.
“The Prosecution fails to identify any timeline relating to the actions actually taken by Investigator Holt and DA Malinsky as it relates to Investigator Holt’s recording, and at what point both DA Malinsky and Mr. Holt forgot about it,” wrote Montoya. “Indeed, it begs the question of whether both DA Malinsky and Mr. Holt had forgotten about the recording by the time of Mr. Chandhok’s March 21, 2022, testimony a mere two months later.”
Steps to Find the Missing Audio File
In fact, Holt did not remember the file was missing until the week of Oct. 31, while he was preparing for the trial. Holt called Malinsky, who said he would immediately inform the defense, which he did.
Holt searched his phone for the file but realized his old phone was destroyed by IT in January 2024.
Holt tried to access the file on the cloud, but there was no Apple ID.
Montoya took issue with the process in his filing.
“Prosecution does not say whether DAI [District Attorney Investigator] Holt reviewed the phone before submitting or if he did not, why he failed to do so,” wrote Montoya.
“This is only the most recent piece of evidence that the prosecution team has destroyed or forgotten about and disclosed late. This most recent lapse raises the question: what else has the Prosecution lost or forgotten about?” Montoya continued. “This is especially troubling because this missing evidence was not even mentioned in Investigator Holt’s report regarding the execution of the search warrant or elsewhere, so the Defense could not have discovered the existence of the recording on its own.”
Montoya also objected to the late discovery.
Wudka-Robles reiterated that the evidence was not relevant. He said the defense was making a “conspiracy-minded mountain” out of an “unremarkable patch of dirt.”
Judge Javier Alcala determined there is no proof the recording contained exculpatory evidence, but he said the defense could mention the destroyed evidence and late discovery to the jury.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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
View Comments (1)
"Judge Javier Alcala determined there is no proof the recording contained exculpatory evidence, but he said the defense could mention the destroyed evidence and late discovery to the jury."
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Ah yes, both Gillmor and the DA investigator have "destroyed" iPhones during the same investigation. How could DDA Wudka-Robles determine the evidence was not relevant if Holt never turned it over to him for review? And what gives Wudka-Robles the idea that he is authorized to determine what evidence is relevant? He's only been out of law school 4 years, maybe let more seasoned Judge's make that decision.