Judge Javier Alcala made decisions on most of the remaining motions in the perjury trial of Council Member Anthony Becker on Oct. 23. Sitting on the bench at the South County Superior Courthouse in Morgan Hill, Judge Alcala ruled on what would be admissible from the interview Becker had with the District Attorney Office’s investigator, Ben Holt.
On Dec. 28, 2022, Becker visited the District Attorney’s Office for a “voluntary interview.” None of his statements were given under oath.
Deputy District Attorney Jason Malinsky asked that he be allowed to play redacted audio from that interview to the jury.
Like Becker’s civil grand jury testimony discussed at the last hearing, Deputy Public Defender Chris Montoya asked that the entire interview be excluded.
Judge Alcala denied the request.
Montoya then pointed out that the transcript for Malinsky’s redacted version did not include black-lined redactions but parentheses with the word “redaction” in it, leaving no clue as to how much was redacted from the transcript. What’s more, the pages were renumbered.
Malinsky’s full transcript showed that only pages 21 through 39 of the 84 page transcript were to be presented to the jury.
Montoya called it “misleading.”
Malinsky pointed out that he does not intend to submit the transcript but rather an audio recording of the interview. He said it would be “apparent” in the audio where the redactions occurred.
Malinsky then informed the court that he had edited the transcript to make sure that it was accurate, including filling in a word that might have been missing, fixing a misidentified speaker or correcting an “inaudible” section when words could clearly be heard.
Montoya argued that there is a “… reason why we have certified transcribers,” taking exception to the fact that Malinsky made changes without sending them to the transcriber for accuracy.
Judge Alcala determined the changes were “minor.” He confirmed with Malinsky the transcript was more than 99% accurate. He told Montoya to review the transcript and compare it to the audio and submit any issues.
The redacted transcript of the audio will include the introductions and then jump to page 21 of the transcript.
Malinsky says the audio on pages 2 through 21 includes discussion about things like where the bathroom is, the Christmas holiday and Becker’s job frustrations. It also included Becker’s description of what happened after a closed session council meeting in which Lisa Gillmor and Kathy Watanabe accused him of yelling the f-word at them.
Montoya argued that Becker’s belief that Gillmor leaked information about that incident to the Chronicle gave insight into his client’s “state of mind.”
The judge did not agree and allowed the redaction to stand.
The redacted pages after page 39 include the moment Becker was served with a search warrant.
Montoya tried to get parts of the transcript admitted but failed. He wanted the judge to include the part where Becker called it a “witch hunt” and where he mentioned the Santa Clara Police Officers Association and the site grandjuryreport.com.
Montoya also wanted to add the section where investigator Holt told Becker that the District Attorney’s Office was going to keep what happened that day confidential and it made “…sense for him [Becker] to keep it confidential as well.”
Montoya argued it was “improper” of the investigator to say that.
The judge saw it as a “suggestion” and said that part would remain redacted.
Jury Selection May Go Old School
Both sides were asked to reach a consensus on a jury questionnaire but have not agreed to anything yet.
Malinsky told the judge the court needed to step in.
He said he tried for several weeks to resolve the issue, but nothing has happened. He had a meeting scheduled with the defense, but it was canceled. He said, “we have made some progress,” but they can’t even agree on what the introductory page would say.
Montoya said he’s had it with the “misrepresentations” by the prosecution and that the opposition won’t agree with anything the defense has proposed.
Montoya submitted a jury questionnaire he believed was fair and took into account Malinsky’s proposals. He asked the court to use that version.
Judge Alcala asked both sides to submit their versions.
He said if they could not come to a “reasonable conclusion,” they would skip the questionnaires and do it the old fashioned way.
Jury Instructions on Count #2 and Rahul Chandhok’s Immunity
Two pieces of jury instructions need wording before the start of the trial.
One refers to count #2, the willful failure to perform a duty by a public official.
Malinsky wanted the wording settled well before the start of the trial.
Montoya is a bit more lax on the timeline.
The judge asked both sides to submit wording and he will decide before the jury is seated.
The other issue is the jury instruction dealing with former 49ers chief of communications and public affairs, Rahul Chandhok.
The prosecution has asked that the court explain why Chandhok took the fifth when testifying to the civil grand jury but was compelled to testify to the criminal grand jury and granted immunity.
Judge Alcala asked several probing questions, including whether Chandhok could testify to that himself.
Following a recess, Judge Alcala came back with a more “generic” statement that could apply to any of the witnesses.
Malinsky did not agree with the wording and said it was more complex than that.
Montoya said what Malinsky wanted included hearsay. Montoya’s suggestion is, according to him, in “accordance with the law.”
Judge Alcala will make a decision on the wording of the jury instruction before the jury is selected.
Watanabe Happy to Submit Emails, DA Cautious
At a prior hearing, the defense withdrew a subpoena for emails to, from, drafted and deleted in Santa Clara City Council Member Kathy Watanabe’s Gmail account from Oct. 1, 2022 to Oct. 15, 2022. The defense issued a new subpoena with a narrower scope, though it was not clear from court documents what that scope was.
Watanabe did not fight the subpoena, but Malinsky did. He was worried about potential emails to civil grand jury members.
The judge agreed to do an in camera review of the emails before they are released and consult with the civil grand jury judge Julie Emede.
Witness Noticing
Both sides will offer groupings and tentative dates of witness testimony to the opposition as a courtesy, with the exception of the potential testimony from Becker.
Malinsky immediately objected, saying he should also receive notice if Becker testifies.
Judge Alcala disagreed.
“I think he [Montoya] can hold onto his cards until the very last minute,” said Alcala in his ruling.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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
From your admirably detailed report of the proceedings, the trial judge strangely appears to be requiring (or pressuring) the attorneys for the prosecution and the accused to agree to the contents of the written questionnaire to be answered by the prospective jurors during the voir dire (i.e., juror selection) process. Most trial attorneys highly value the use of such questionnaires as they greatly expedite and aid the voir dire process by more efficiently providing a more complete set of relevant information about the prospective jurors. In other words, there is much upside to using them and no downside (especially in complex and unusual cases like this one).
Counsel are not required to agree to what ORAL questions they will ask during the voir dire process nor are they required to agree on what jury instructions will be given to the jury later on in the trial or what the Verdict Form will look like. Naturally, it is the judge who must decide all of these legal questions. That is why he is there. Consequently, the attorneys should not be required to agree to the contents of WRITTEN questionnaires. It would be nice if they were able to agree. However, ultimately, it is the responsibility of the trial judge to make such decisions when there are disputes (as there often are in our trusted adversarial system of justice) between the attorneys. Attorneys advocate, judges decide. That is how it has been since the beginning of recorded history.
My guess is that this case shall result with a “hung” jury. The prosecution shall then offer a settlement if Becker is willing to plea “guilty” to a lesser charge. The defense will decline. Onwards to a second trial and another “hung” jury. The case will then be dismissed.