Jury selection is underway at the South Santa Clara County Superior Courthouse in Morgan Hill. On Monday, the court called approximately 240 jurors into the courtroom to begin the process of selecting a 12-person jury for the perjury trial of Santa Clara City Council Member Anthony Becker. Four others will serve as alternates.
More than half of the jurors were dismissed due to hardships that ranged from being primary caretakers to financial hardships.
The remaining jurors will return on Friday to begin the process of jury selection.
SF Chronicle Can be Mentioned in Court Proceedings
On Tuesday, the court dealt with the remaining motions.
To try and simplify the prosecution’s case, Deputy District Attorney Jason Malinsky asked the court to exclude mention of any news publication other than the Silicon Valley Voice and San Jose Spotlight. He argued there was no relevance.
Deputy Public Defender Chris Montoya said the District Attorney’s own investigator mentioned the San Francisco Chronicle posting an article the morning of Oct. 7, 2022, before the Spotlight.
Judge Javier Alcala denied the prosecution’s request.
Malinsky said it sounded like the court was allowing a third-party culpability argument.
The judge did not change his ruling.
Chandhok’s Letter at Issue
Small portions of a letter emailed to several media outlets and the court by former 49ers chief of communications and public affairs Rahul Chandhok on the morning of Oct. 7, 2022 will be allowed into evidence.
Malinsky tried to exclude the contents of the letter while still admitting the letter itself. He said it proved Chandhok had the civil grand jury report “Unsportsmanlike Conduct” early because of how quickly the 49ers released a 62-page response.
He said the timing was important, not the content.
Becker’s pro bono attorney, Grant Fondo, called it “extraordinary” to allow a witness to testify about sending the letter and the content of the letter without allowing the jury to see the letter.
Chandhok’s letter attacked the veracity of the claims in the “Unsportsmanlike Conduct” report.
Fondo said portions of the letter, including the part where Chandhok stated on 49ers letterhead that he received the report from multiple media outlets, could help prove Becker’s innocence.
He said since the letter is addressed to the court as well, it should be admissible as evidence.
Judge Alcala asked if Fondo could just ask Chandhok about the letter. Fondo said a letter is more “powerful.”
Judge Alcala will admit the letter into evidence without admitting a majority of its contents. The defense can ask for small portions to be admitted and the judge will rule on each individually.
Former City Attorney Ngo’s Communication with Becker Excluded
Judge Alcala excluded emails and phone conversations Becker had with then-City Attorney Steve Ngo between Oct. 5, 2022 and Oct. 10, 2022.
Malinsky said Ngo sent an email to the council that contained Ngo’s “opinions” on the law and they were not “relevant” to the case.
Fondo said between Oct. 5, 2022 and Oct. 7, 2022 Becker had two phone calls and an email exchange with Ngo. The communication goes directly to Becker’s “intent” in regard to the perjury charges.
Ngo’s letter to the council in early October after the leak of the report started by saying the “prohibitions of disclosure” still apply to Monday at 10 a.m. The paragraph ended with, “My advice is to wait until Monday at 10 a.m.”
However, in the middle of the paragraph, Ngo writes, “I understand that we may read the statute a different way in light that the report is now public.”
Fondo argued this statement goes to Becker’s “state of mind” when he was asked about leaking the report several months later.
Judge Alcala determined Ngo said do not release the report twice. The judge excluded the letter.
Fondo pushed back and said the fact that Judge Alcala was struggling with the decision showed the “ambiguity.”
Judge Alcala did not relent.
The judge also agreed with Malinsky and excluded comments Becker made to Ngo on Oct. 6 and 7, 2022 as hearsay.
Becker’s attorneys said that Becker called Ngo on Oct. 6, 2022 and said a reporter had called him, Becker, for a comment. Becker also talked to Ngo on Oct. 7, 2022 after another council member made a statement to the press.
Malinsky argued the calls were made with the “intent to deceive.” He said Becker made the calls after he had committed the crime. Malinsky further argued that Becker was presenting “falsehoods” to Ngo to try and seek permission from the City Attorney.
Fondo said Becker was talking to his lawyer, the city council lawyer.
Malinsky said people lie to their lawyers all the time.
Judge Alcala determined the statements Becker made to Ngo were hearsay. He told the defense it could bring the issue up again as the trial progressed.
49ers Independent Expenditures Will Remain in Evidence
Becker’s lawyers also asked the judge to reconsider a ruling that allowed the 49ers’ 2024 independent expenditures into evidence.
Becker’s pro bono attorney, Hayes Hyde of Goodwin Proctor, argued the expenditures are independent of Becker as stated by the Supreme Court.
Further, Hyde said the connection violates the 49ers’ right to free speech under the First Amendment and her client’s First Amendment rights in that his ability to be a candidate is threatened because he is supported by a third party.
Deputy District Attorney Pablo Wudka-Robles said the First Amendment argument has “no basis in law or fact” and the connection between Becker and the 49ers was “as plain as day.”
Judge Alcala agreed, saying motive is “always relevant” and any benefit whether Becker was directly involved or not is relevant.
The motion to reconsider was denied.
Jude Barry Will Serve as a Witness for the Prosecution
Jude Barry was added to the prosecution’s witness list.
Malinsky said Barry would testify that Becker’s statements are false.
Montoya argued that Barry took part in posting the leaked civil grand jury report on grandjuryreport.com and has worked with Santa Clara Mayor Lisa Gillmor on political campaigns.
The judge said the defense can object if Barry is called as a witness.
“John Doe’s” Criminal History
The prosecution asked to exclude the criminal history of a witness referenced only as “John Doe.”
Malinsky said Doe’s indiscretion happened more than 20 years ago and has been expunged from his record. Malinsky asked the court to exclude Doe’s past crimes as it “might influence the work he’s doing now.”
Montoya argued that Doe is not a public figure, politician or a council member and that excluding this past history appears to be the prosecution’s efforts to “safeguard” the witness.
It’s worth noting that in previous hearings, the defense had agreed to exclude past illegal actions of three of the prosecution’s witnesses without argument.
Montoya said there is no “legitimate” legal reason to exclude the legal history.
Judge Alcala granted the prosecution’s motion, saying he saw no harm to Becker’s case but did see a potential harm to Doe.
If the witness testifies that he has never been in trouble with the law, Judge Alcala agreed it would open the door to the defense because it would be misleading to the jury.
Jury Instruction Wording
After several meetings and emails, the judge created wording for the jury instructions regarding Count #2.
Malinsky asked for revisions, including stylistic changes and a slight rewording.
Montoya objected to The People proposing changes to what the court had already imposed. He asked that the defense’s proposed wording also be filed on the record.
Judge Alcala decided to use the wording from the prosecution less the final paragraph proposed.
Montoya also objected on the record to the judicial notice on Chandhok’s immunity. He has previously argued that it’s not the court’s place to make this notice and it should be made by the witness on the stand.
After lodging his objection, Montoya asked that the words “for the commission of a crime” be added to the second to last paragraph.
Opening statements in the trial are expected early next week.
Silicon Valley Voice’s Continuing Becker Trial Coverage:
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
