The judge overseeing the perjury trial of Santa Clara City Council Member Anthony Becker ruled on several motions on Oct. 9, giving the public a better idea of what evidence and arguments will be presented in court.
Defense’s Motion to Dismiss Denied
Judge Javier Alcala first heard a motion to dismiss at the South County Superior Courthouse in Morgan Hill. The defense argued that the prosecution failed to present evidence to the criminal grand jury that would have negated Becker’s guilt.
“The [p]rosecution provided high-level sanitized summaries of evidence showing that someone else may have leaked the report, leaving out critical details showing that Mayor [Lisa] Gillmor and Councilmember [Kathy] Watanabe had a habit of leaking confidential information and a motive to do so again here,” wrote Becker’s attorney, Deputy Public Defender Chris Montoya.
The defense said the investigation into Becker was “abnormally aggressive,” the prosecution failed to investigate potential leaks by Gillmor and Watanabe and did not pursue investigations into “earlier and subsequent leaks attributable to Mayor Gillmor and/or Councilmember Watanabe.”
The prosecution’s response was simple.
“Defendant was indicted because of the overwhelming evidence of his guilt, not because the People withheld exculpatory evidence or improperly targeted [d]efendant,” wrote District Attorney Jeff Rosen in the opposition.
Judge Alcala denied the motion to dismiss. He said that the District Attorney’s office provided “sufficient” evidence and it did not “single out” Becker.
Leak to the Chronicle a Point of Contention
Exactly who leaked the “Unsportsmanlike Conduct” report to the San Francisco Chronicle became a major bone of contention as the judge heard motions in limine (pre-trial motions).
While the prosecution admits more than one party leaked the report and the Chronicle had a copy before it was supposed to, it would not “stipulate” that Becker did not leak the report to the Chronicle.
Montoya argued the prosecution plans to use a timeline to show the report first appeared on the Silicon Valley Voice (this publication), followed by the Chronicle and then the San Jose Spotlight. He worried that by not stipulating the Chronicle received the report from someone else, the jury could assume Becker may have also leaked the report to the Chronicle.
Deputy District Attorney Jason Malinsky stood firm.
Montoya argued there is “danger” in speculation.
Judge Alcala said it might be cleared up in an instruction to the jury.
Third-Party Defense Denied
In perhaps the biggest ruling of the day, Judge Alcala agreed with the prosecution that a “third-party defense” should be excluded. Becker’s defense appeared to be poised to argue that Gillmor and Watanabe also leaked the report and had a history of leaking confidential information.
Montoya said while similar crimes were committed, only Becker was prosecuted.
Malinsky disagreed. He said the only issue on trial was who disclosed the report to the 49ers, the Silicon Valley Voice and the San Jose Spotlight.
“This is not a trial about what Gillmor and Watanabe may have done in addition to the [defendant],” wrote Malinsky in a court filing. “Should Gillmor and Watanabe have committed the same or similar crimes as [d]efendant does not absolve [d]efendant of his crimes.”
Judge Alcala agreed and excluded the third-party defense. The judge also agreed to exclude allegations of past leaks to the Chronicle by Gillmor and any other alleged leaks by Gillmor or other council members.
He said the defense could revisit the issue if it provides new evidence.
Discussion About Civil Grand Jury Limited
Several motions by the prosecution limited the discussion about the civil grand jury.
The defense cannot question the “competency” of the 2022 civil grand jury, which penned the “Unsportsmanlike Conduct” report that Becker is accused of leaking to the 49ers.
“… [T]he question is not whether the tribunal has performed the duty perfectly – the question is whether the tribunal had the authority to perform the duty and administer the oath that the defender violated,” wrote Malinsky.
Grant Fondo, Becker’s pro bono attorney, argued that if there was no quorum, then a grand jury was not competent.
Fondo said two civil grand jurors recused themselves from the “Unsportsmanlike Conduct” report, but no one will say if those same jurors served in the investigation into the leak of that report.
Judge Alcala offered a narrow ruling granting the prosecution’s request.
Questions about bias or conflicts of interest of the 2022 civil grand jury members will be excluded except in the cross examination of 49ers’ investigator Tim Hoekstra. Those will be taken on a question by question basis.
Malinsky also sought to exclude all emails and testimony that held information about the 2022 civil grand jury members.
Montoya argued if an email from Hoekstra that included information about the jurors is entered into evidence, then defense has the right to cross examine.
Judge Alcala did not rule but warned the prosecution that whatever it presented would open the door to cross examination.
Other rulings in regard to the civil grand jury include:
- The defense can ask questions about the report and reaction to it, but cannot “grade” it in cross examinations.
- The defense can cross examine witnesses 2023-24 civil grand jury foreperson Karen Enzensperger and court employee Britney Huelbig about the general procedure of the grand jury and distribution of the report.
- Neither side will reference the 2024 civil grand jury, its members or its investigations.
- The defense will be allowed questions or references “… to the opinion that the Santa Clara County civil grand jury operates to benefit Mayor Lisa Gillmor,” but only in regards to the “Unsportsmanlike Conduct” report.
- The prosecution tried to preclude the argument that the timing of the report was politically motivated, but the judge denied the request.
Narrowing the Avenues for a Defense
Many of the motions filed by the prosecution appeared to be aimed at narrowing exactly how Becker’s defense could play out.
The prosecution tried to exclude evidence designed to “solicit sympathy.”
While Judge Alcala agreed to exclude evidence about how a verdict would affect Becker’s family, employment or other parts of his life, the judge did not block Becker from talking about how he felt about his arrest, indictment or the search warrants served at his home.
The prosecution also tried to prevent the defense from saying that Becker could not have willfully violated his duty if the civil grand jury report was already “public.”
Fondo pointed to testimony from interim Santa Clara City Attorney Steve Ngo, who said he wasn’t sure if a document wasn’t considered “public” once it was in the media. Fondo said it would be unfair to hold Becker to a higher standard than a trained attorney.
The judge deferred ruling in case Becker testifies.
The court will wait to decide if references to alleged misconduct by former Santa Clara County criminalist Alan Lee will be precluded. While Lee is no longer with the District Attorney’s office, Becker’s lawyers want assurances that current criminalists are not making decisions based on Lee’s past work.
Judge Alcala will issue a judicial notice that says Rahul Chandhok, the former chief of communications and public affairs for the San Francisco 49ers and key witness for the prosecution, invoked his Fifth Amendment right and did not testify to the civil grand jury. Chandhok was compelled to testify to the criminal grand jury and received immunity.
Among the other rulings:
- The cross examination of Chandhok can include questions about who gave him the report.
- Only statements made by Becker and admitted by the People will be used as evidence unless there is an exception to the evidence code.
- References and claims of “selective prosecution” will be left out by the defense except during cross examination of the District Attorney Investigator Benjamin Holt about the leak to the 49ers or a potential leak by someone else to the 49ers.
- The defense can ask Holt which reporter leaked the civil grand jury report. Other cross examination will be limited.
- The defense cannot allege “improper motives” by the District Attorney.
- A ruling about any references to the “legality” of Becker’s interactions with law enforcement was deferred.
- Both sides will exclude prior arrests or misdemeanors by witnesses.
- Neither side can use photos, documents or charts in opening or closing statements unless they are first approved by the other side.
Defenses Motions in the Becker Perjury Case
During the defense’s motions, Montoya asked to file a motion under seal that he said included privileged information between himself, Becker and Chandhok. Montoya was worried that if it was not deemed privileged, it would become public. He would rather withdraw the item to protect the attorney-client privilege information.
The judge agreed to look at the item before it was filed, much to the chagrin of Malinsky who argued that if it’s not privileged, he has a right to it.
Judge Alcala admitted that it was “a little unusual.”
The defense’s witness list includes many familiar names, including Jude Barry, Gillmor, Karen Hardy, Robert Haugh, Quentin Kopp, David Mariani, John McLemore, James Rowen, Jeremy Schmidt, Kirk Vartan and Karl Watanabe.
Malinsky wanted reasoning since he didn’t see the witnesses’ “relevance.”
Montoya told the court the defense had met its “burden.”
Judge Alcala agreed and said the defense would alert the prosecution when it calls its witnesses.
Other defense motions before the judge passed quickly, including:
- Malinsky will not be allowed to represent himself as the “People” if it gives the impression that he is representing himself and the jurors against Becker.
- Witnesses will not be allowed in court except when testifying. The only exception is investigator Holt.
- Anne Moriarty’s statement about statements made by Chandhok is admissible. Moriarty works for Milltown Partners, a strategic communications firm that worked with the 49ers in 2022.
- Bruno Kirschbaum’s testimony about a closed session incident between Watanabe, Gillmor and Becker will be excluded.
- Al Guido’s phone records will be excluded.
- Testimony from unavailable witnesses will be excluded.
- Both sides will inform witnesses about the court’s pre-trial rulings before their testimony.
- Jurors will be excused for cause if they appear “ambivalent about ability to be impartial.”
Connection to the Silicon Valley Voice
The prosecution will admit evidence that shows the Silicon Valley Voice’s (this publication’s) connection to the 49ers. The defense asked for clarification on the exact documents before the judge rules.
The evidence is expected to include emails between Silicon Valley Voice Editor Angela Tolliver and Chandhok sent on Oct. 6, 2022 and text messages between Silicon Valley Voice publisher Miles Barber and Chandhok.
A text exchange between Silicon Valley Voice reporter Carolyn Schuk and Chandhok will also be included. It reads:
Schuk: “I’m buying coffee next week. Or (champagne emoji).”
Chandhok: “Angie send you my statement and the additional info?”
Schuk: “Oh yes – that’s what we needed to shove Lisa’s October surprise right up her ass.”
The prosecution says these exchanges show the “collaborative relationship” between the 49ers and Silicon Valley Voice and against Becker’s political rival Gillmor.
The prosecution says emails will show Chandhok was protecting Becker as the source of the leak.
Becker Trial Continues Next Week
Both sides are back in court next week to continue pre-trial motions.
Jury selection begins in the last week of October.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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 (17)
“the prosecution admits more than one party leaked the report and the Chronicle had a copy before it was supposed to … The judge also agreed to exclude allegations of past leaks to the Chronicle by Gillmor and any other alleged leaks by Gillmor or other council members.”
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• If the prosecution admits others also prematurely released the report, then they likely know who it was. This should be revealed to the jury. Remember, the SCPOA refused to answer questions if they had the Report prior to the Court’s release date but the SCPOA had purchased the website domain ahead of that official date. Hopefully Montoya and Fondo question Gillmor and Schmidt extensively on this.
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“The prosecution also tried to prevent the defense from saying that Becker could not have willfully violated his duty if the civil grand jury report was already public. Fondo pointed to testimony from interim Santa Clara City Attorney Steve Ngo, who said he wasn’t sure if a document wasn’t considered “public” once it was in the media. Fondo said it would be unfair to hold Becker to a higher standard than a trained attorney.”
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• The prosecution trying to game testimony here. Becker might have believed it had already been distributed to others in the public, therefore it wasn’t private. He was just doing the same as other Council Members, namely the mayor, if she also leaked it.
CSC,
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"The prosecution trying to game testimony here. Becker might have believed it had already been distributed to others in the public, therefore it wasn’t private. He was just doing the same as other Council Members, namely the mayor, if she also leaked it."
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This defense does not make sense. Becker's defense is trying to make this argument now but Becker is in this situation because he tried to hide the fact that he leaked the report. In so doing he proved that he knew it was wrong and chose to lie about it instead of stating that he did so because he believed it had already been leaked. If he had admitted to the leak when he was first asked about it then he would only be facing a misdemeanor charge and maybe not even that.
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Not only did Becker lie about leaking the report but according to one of his former campaign volunteers he instructed that volunteer to claim that Lisa Gillmor leaked the report. He also allegedly told this volunteer that his husband, Abel Cardona, leaked the report. And that he and Abel got married so that Abel would not need to testify against him. According to his campaign volunteer Becker not only committed perjury but also tried to suborn his volunteer's perjury.
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Finally at the time that Becker leaked the report there was no reason for him to believe that the report had been leaked by anyone other than himself.
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It seems clear he knew that he was wrong in leaking the report because he tried to hide it. He also allegedly tried to pin the blame on two other individuals. And then he lied about all of this in sworn testimony.
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He should not have leaked the report. He should not have lied about leaking the report. He should have resigned when this all came out. And he should have tried to negotiate a plea deal in exchange for pleading guilty back when he probably had a chance to. Before he decided to stay on as a councilperson and vote on issues related to the financial interests of the huge corporation that he leaked the report to. The same one that has spent millions of dollars to get him elected to city council and to try to get him elected as our mayor.
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All of his allies on council should not have remained silent on this issue. They should not have silently allowed Becker to remain on council at all much less vote for him to become vice mayor while credibly charged of perjury and for illegally leaking a grand jury report to a corporate special interest in order to help that special interest do public relations spin as soon as possible. Regardless of how you feel about the rest of their decisions as councilpeople their silent toleration and even support of Becker in this is a stain upon their credibility.
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Suds Jain even testified about his knowledge that Becker lied under oath. He voted to appoint Becker vice mayor even though he knew that Becker had committed perjury.
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Their silence on the matter and elevation of Becker to vice mayor is taking their political alliance with Becker too far. They are protecting a criminal who betrayed the public trust and that is wrong.
Erika,
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Thank you for writing such a detailed and largely impartial report of the day's proceedings. I appreciate how you laid out everything piece by piece and seem to have covered everything that transpired in a way that is very organized and digestible.
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I also appreciate how there is finally an acknowledgement in this publication that the highest ranking people in the publication were communicating directly with the Forty Niners. And that it is a fact that Carolyn Schuk at least was engaged in a collaboration with Rahul Chandhok to sway public opinion against the grand jury report as part of a general agenda to attack Gillmor and defend the Forty Niners and Becker and others. I am glad to see acknowledgement of communication between Angie Tolliver and the Forty Niners and it is new news to me that there was between Miles Barber and the Forty Niners. Of course that was obvious to anyone paying attention to what the Silicon Valley Voice prints about the Forty Niners and most especially what is written by Miles about the Forty Niners.
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This is the only professional journalistic publication that is devoted to Santa Clara news. No matter how one feels about the city's deals and dealings with the Forty Niners it is not right for this publication's key figures to work with the Forty Niners as political spinners. It would be tolerable if transparent and confined to editorials. But it has never been transparent and political agenda has frequently leaked into what should be pieces of reportage.
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And far too many articles about the city business with the Forty Niners in which interests are not totally aligned there is nothing critical of the Forty Niners and sometimes even spelling out of points in defense of the Forty Niners. As if the point is to make the Forty Niners look as good as possible even if the context is a dispute with the city over money. Even in disputes in which the city ultimately prevailed.
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Working behind the scenes with the Forty Niners is an embarrassment for what is supposed to be an unbiased news organization. I am glad to see it somewhat acknowledged here even if it is just one of many points of information in this very complete and diligent account of these court proceedings.
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I try to remember good journalism such as this when I read the embarrassing editorials that Miles forces you all to suffer being published under the same masthead.
A truly unbiased media is a false “dream”. Since the beginning of time, our media are all “biased”. “Informing the public” has always been secondary to “persuading” the public. “Fox News” is conservative, and “The New York Times” is liberal. Our local papers, “The Chronicle” and “Mercury News” have strongly supported “Harris” over “Trump”. America’s media opposes Russia, and Russian media does the opposite.
As for our local news, The Chronicle favors Gillmor, whereas The Mercury News and the Santa Clara Weekly oppose Gillmor. Even most comments here, including yours, are attempts to persuading the readers, rather than informing them.
Journalists should strive to be as unbiased as possible in their reporting. Impartiality is a cornerstone of journalism ethics.
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I think almost all professional journalists would disagree with you and would affirm their belief that journalists should strive to be impartial.
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And the Declaration of Independence is not a work of journalism. The fact that you think so makes it seem clear that you do not even know what journalism is.
I disagree. My definition of journalism is the presentation of information to the public through the media: whether written, spoken, visual, etc. Therefore, the Declaration of Independence does qualify. As does the “Bible” or our “Constitution”.
As for being “unbiased”, perhaps you should check the list of awards annually given to outstanding journalists. There are many categories, but also include the following (definitely not impartial): Criticism, Editorial, Commentary, Explanatory Reporting, Investigative Reporting, etc.
Buchser3,
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Everyone can have their own personal definition of anything but most everyone else goes with recognized definitions. Almost nobody considers the Bible or the Declaration of Independence to be works of journalism. A restaurant menu presents information to the public and restaurant menus are not "journalism." The list of ingredients on a cereal box or a website for a cereal brand is not "journalism."
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The Silicon Valley Voice I am sure thinks of themselves as upholding a higher level of journalistic standards in their reporting than is to be found on a restaurant menu or even in an editorial column. I am sure that Carolyn and Erika and David and others all strive to report the news in a way that is more impartial and complete and professional than what Miles strives for in his "Milestones." I am sure they strive for this in their Op-Ed pieces as well even if they cannot say this in public because Miles is the publisher.
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When you list categories of Pulitzer prizes to indicate what is "journalism" you should know that Pulitzers are also awarded for categories that are not journalism at all. Such as fiction and poetry. Not all Pulitzer awardees are journalists.
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And you should also understand that when I criticize the Silicon Valley Voice for bias in their reporting I have also explained that I think it is suitable for bias to be exercised in their editorials. The issue with bias is in the articles that are presented as journalistic reporting which is an area of journalism where journalists are supposed to strive to be impartial. This is the case whether or not you want to recognize it.
Well, obviously, I go not agree with you. The definition I listed earlier is definitely not my personal definition. This is the definition found from my dictionary, “Oxford University Press 2010”: Journalism is the presentation of information to the public through the media: whether written, spoken, visual, etc. Under this definition, Declaration of Independence would be acceptable. (The Bible, I admit, was just a “joke”, to have some “fun”.) Now, I’m certain you also have a dictionary available. I suggest you look up the definition yourself. I believe you will find it defines journalism in the similar manner. What you have criticized me for are all lies. “Journalists should strive to be unbiased” is a lie. “Impartiality is the cornerstone of journalism ethics” is a lie. “Journalists should strive to be impartial” is a lie. “You do not even know what journalism is” is a lie.
Now, Journalism is the “major” category. Under this are many sub-categories. One of them is “Reporters”. Now, the terms “Reporters” and “Journalist” are often interchangeable. However, there is a major difference. Reporters tend to stick to facts, whereas journalists are allowed more latitudes. Journalists are “free” to express their opinions and biases to express emphases on their particular points of view.
I suggest you Goggle a listing of famous and well-renown Journalists. You will discover that very few of them are from the “Reporters” category.
In fact, I think you would agree with me that there are a very large number of highly paid and popular TV journalists whom we would definitely consider to be biased, especially in the fields of “Sports” and “Politics”.
Here is a more complete description: Journalism is the production and distribution of reports on the interaction of events, facts, ideas, and people that are the "news of the day". Some stories are intended to represent the author's own opinion; others feature balanced points of view. The word applies to the occupation (professional or not), the methods of gathering information, and the organizing literary styles.
Buchser 3,
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On the matter of the difference between who is broadly a "journalist" and who is more specifically a "reporter" you make a good point. Just like I did:
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"It would be tolerable if transparent and confined to editorials. But it has never been transparent and political agenda has frequently leaked into what should be pieces of reportage."
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And from what you have written and continue to write I understand that you think that the Declaration of Independence is a work of journalism. And because of how you describe your definition of "journalism" or interpretation of a dictionary definition you must also think that a restaurant menu is journalism. I suppose you think a telephone book is journalism. A realtor who distributes leaflets showing recent home sale prices is not just a realtor but also a journalist.
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If you are comfortable with everyone reading your comments to see that you think this then that is your decision to make.
Again, I object. Please refer to my more complete definition of “Journalism” above: “Journalism is the production and distribution of reports on the interaction of events, facts, ideas, and people that are the “news of the day”. Most stories are intended to represent the author’s own opinion; others feature balanced points of view. The word (Journalism) applies to the occupation (professional or not), the methods of gathering information, and the organizing literary styles.”
For most folks, this definition would exclude telephone books, realtor notes, restaurant menus, and notes on the cereal boxes.
In any case; I wish to state clearly, this is definitely not my definition. This is a definition found from inside an encyclopedia. Please inform me what your source is.
Just as importantly, I want to impress upon you that the statements you’ve mentioned earlier are all lies: “Journalists should strive to be unbiased” is a lie. “Impartiality is the cornerstone of journalism ethics” is a lie. “Journalists should strive to be impartial” is a lie. “Almost all professional journalists would disagree with you and would affirm their belief that journalists should strive to be impartial.” is a lie. “You do not even know what journalism is” is a lie.
The honest truth is that it may be you who do not know what journalism is.
Here is a short list of some well-known award winning journalists: Thomas Friedman, James Baldwin, William Buckley, George Will, Rush Limbaugh. I would definitely not consider any of them to be “unbiased” or “impartial”.
Historically, “great” journalism is most memorable and is at its best and wins prizes and awards when it does the job of persuading their readers to follow their thoughts and their path of sound reasoning and to take action.
An excellent example of “great” journalism is “The Declaration of Independence”. And, although many may not agree, in my opinion, Miles’ editorials would definitely qualify as “good” journalism.
Becker has pled innocent. This trial shall soon be decided by a jury of his peers. I’m guessing a “hung” verdict.
A few more silly guesses: After a “hung” jury, the prosecution shall offer a settlement: accept a “guilty” plea, and pay a large “fine”. The defense will then offer a counter settlement: a “no contest” plea, and a smaller “fine”. A second trial shall then begin: again a “hung” jury. The case shall then be discontinued.
There were other people who also leaked the Civil Grand Jury report. D.A. Rosen is making an example out of Becker.
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He is also making an example out of me.
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After I reported to him that an attorney connected to him is sex trafficking my kids and assaulting me, he filed charges against ME. I did not even commit a crime. The whole goal of filing charges was to quickly bring the matter to competency proceedings in order to absolve the attorney of her crimes. Presenting exculpatory evidence or begging for the protection of my children did prompt D.A. Rosen to stop pursuing the case he filed against me.
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I posted a lot of the details on a public petition, in case anyone is interested.
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https://www.thepetitionsite.com/272/404/301/district-attorney-jeffrey-rosen-please-stop-sex-trafficking-my-kids/
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And you can see the injuries that I sustained here: https://www.scribd.com/document/536324007/Valerie-Houghton-Divorce-Attorney-and-Marriage-and-Family-Counselor