One of the mayor’s allies said he deserved “credit” for the civil grand jury report that is at the heart of Vice Mayor Anthony Becker’s perjury trial, bolstering his lawyers’ claim that Becker’s prosecution is politically motivated.
Judge Javier Alcala has dismissed claims that the District Attorney’s office ignored evidence that Mayor Lisa Gillmor and political ally Council Member Kathy Watanabe also leaked the report. However, in a motion to dismiss, Becker’s lawyer, Deputy Public Defender Chris Montoya, argued the prosecution framed the investigation to minimize Gillmor and Watanabe’s involvement and highlight Becker’s.
Alcala and other judges have repeatedly rejected the idea that Becker can get off the hook by implicating others or pointing to the DA’s unwillingness to prosecute other culprits. These defense tactics are known as third-party culpability and selective prosecution.
“The City of Santa Clara has a history of leaks of confidential information, including two leaks of confidential information just a few months prior to the Report’s release relating to the City’s relationship with the Forty Niners … None of these leaks has [sic] resulted in prosecutions even though they violated the law,” Montoya wrote in the motion.
According to the motion, it appears James Rowen, a vocal Gillmor supporter, made the complaint that resulted in the civil grand jury investigation. Ahead of the report’s official release, Rowen emailed Gillmor and San Francisco Chronicle reporter Lance Williams, saying he deserved “credit” for it.
This reinforces the defense’s narrative that the civil grand jury report was designed as a type of political assassination.
And it doesn’t stop there. In the motion, Montoya details a slew of situations where the DA, in his view, cherry-picked the information it presented to the criminal grand jury, giving the impression the DA’s case is stronger than it is.
Presenting a high-level synopsis of Becker’s testimony painted the picture that his suspicion that others leaked the report was baseless, Montoya wrote. If the criminal grand jury had been able to read his entire testimony, they would have been able to see that Becker’s suspicion was well-founded with concrete examples.
This is relevant because whether Becker knew others had leaked the report plays into the perjury claim. If he knew — or had reasonable suspicion that — others had given the report to media outlets, then he didn’t lie when he denied leaking the report since it would have already been public and therefore not “leaked.”
Further, Montoya notes that high-level synopsis of Gillmor and Watanabe’s testimonies serves to minimize their involvement. For instance, summarizing their testimonies robbed the criminal grand jury of the ability to hear Gillmor’s flimsy excuse for deleting Signal, an encrypted chat app, just days after the investigation began.
Just as curious is Gillmor showing up to a voluntary interview with a new phone because, she claimed, she “dropped” the other one during her campaign. Investigators’ notes also indicate that Gillmor had an undated connection request from Williams on WhatsApp, giving her another avenue for encrypted communication besides Signal.
“The Prosecution’s selective exclusion of these facts belies its duty to inform the Criminal Grand Jury of all evidence reasonably tending to negate guilt,” Montoya wrote.
Essentially, Montoya accuses the DA’s office of vacillating between being vague and being specific when presenting information to the criminal grand jury, depending on which served its case better.
Buttressing this point, the criminal grand jury also did not see Gillmor’s internet searches just days after the leak. Gillmor searched the penalty for violating the very California code then-City Attorney Steve Ngo warned her not to violate. She also searched whether someone could go to jail for contempt of court.
In the six months prior to the investigation, there were three “serious leaks, likely by Gillmor,” according to the motion. This, Montoya wrote, illustrates that the DA was only interested in Becker and not any politician that turns over privileged information to the media. Once the DA decided to prosecute Becker, investigators simply stopped pursuing any other culprits, failing to even examine Gillmor’s electronic devices.
“If Mayor Gillmor did leak the Report, as evidence suggests, she committed perjury before the very same Civil Grand Jury that Mr. Becker is being charged with lying to,” Montoya wrote. “The Prosecution’s selective prosecution as to the leak of the Report is bolstered by its failure to pursue prior and subsequent leaks of confidential information.”
Adding to the idea of a conspiracy, Montoya notes that the investigation commenced only once Gillmor was determined to have retained the mayor’s seat. Additionally, Watanabe admitted to leaking the report to her husband, but the DA did nothing about it. When she learned of the report’s release, she characterized it as a “turning point” for Gillmor’s campaign, saying that the “calvary has arrived [sic].”
Failure to prosecute other leaks while pursuing an “abnormally aggressive” investigation against Becker amounts to “harassment,” Montoya wrote. Meanwhile, he added, Gillmor and Watanabe have been handled with “kid gloves.”
But Alcala was unconvinced, denying the motion to dismiss Oct. 9, saying the DA’s evidence was “sufficient” and that it did not “single out” Becker.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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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