As foreshadowed at his last court hearing, former Santa Clara City Council Member Anthony Becker has appealed his conviction for felony perjury and misdemeanor violation of duty. In the brief filed on Dec. 15, 2025, Becker’s appeals attorney, Richard L. Fitzer of Long Beach, argues that the court violated Becker’s Fifth Amendment right to due process and his Sixth Amendment right to present a “complete defense.”
According to the brief filed with the Sixth Circuit Court of Appeals, Judge Javier Alcala, who oversaw Becker’s trial, “denied the defense discovery bearing on a claim of selective prosecution.”
In several pages of arguments, Fitzer states that Becker’s primary defense was selective prosecution, but he was denied the discovery that would have allowed him to mount that defense. Fitzer argues that Becker’s conviction should be overturned, he should be provided the discovery he was previously denied and that he should receive a new trial based on that evidence.
Fitzer makes two points to back this up: first, that former Council Member Kathy Watanabe gave her husband the “Unsportsmanlike Conduct” civil grand jury report to read – the same one Becker was convicted of leaking. However, Watanabe was not charged with misdemeanor violation of duty.
Second, Fitzer argued that evidence showed Santa Clara Mayor Lisa Gillmor engaged in similar activity to Becker. Evidence not allowed into trial showed that Gillmor opened the report, emailed it to her personal email and printed it just a day before it appeared in a news outlet with direct ties to her. Testimony from former City Attorney Steve Ngo linked Gillmor to two prior leaks of confidential reports that appeared in that same news outlet. Gillmor testified under oath that she did not leak the report, but evidence showed she went home to do internet searches on topics such as “contempt of court.”
By disallowing this evidence, Fitzer says the judge cut off any opportunity for a selective prosecution defense.
“The prosecution in this case was not about justice or combating political corruption,” wrote Fitzer. “It was about political retribution and taking an opponent’s piece off the board – permanently!”
It Always Comes Back to Politics
In his brief, Fitzer outlined for the court the political charge of the case. The preliminary “Unsportsmanlike Conduct” report was released on Oct. 5, 2022, with a scheduled public release of Oct. 10, 2022. Civil grand juries typically release their reports in June/July, near the close of their terms, but this report was well-timed. It came out in the middle of a hotly contested mayoral race between Becker and Gillmor.
Many people in the Becker trial referred to it as Gillmor’s “October Surprise.”
Fitzer argued in his brief that Gillmor worked hard to recruit grand jury members. That civil grand juries have a group of grand jurors called the “Santa Clara Connection” who “have been working and/or discussing or having communications with Mayor Gillmor and essentially pushing her agenda or doing things, putting things into effect that she wants to happen.”
While the District Attorney painted Becker as a corrupt politician taking money from the 49ers, Fitzer pointed to an NFL owner vs. NFL owner fight. He cited several articles in which Gillmor has pitted herself against the 49ers, while simultaneously receiving backing from PACs funded by another NFL owner, Stephen Ross, who owns the Miami Dolphins and also runs a development company with deep ties in Santa Clara, Related Companies.
He argued that at the time the “Unsportsmanlike Conduct” report was released, Becker’s campaign had run ads that called into question Ross’s integrity and morals, calling him one of Donald Trump’s biggest supporters.
“If more than one City official ‘leaked’ the report ahead of time but appellant was the only one prosecuted, that would be evidence of selective prosecution,” wrote Fitzer. “The fact that he ran against the mayor would make that vindictive prosecution – especially, if the other leaker was the mayor or a member of her political party.”
Is it a Leak if There’s Already a Leak?
Perhaps second in the appeal is the defense to the perjury charge, which appears to rest on the premise that a document cannot be leaked if it is already in the public domain.
“In this case, Becker’s primary defense to the perjury charges was that he believed that his disclosing of the grand jury report was not ‘leaking’ because the report was already out in the public square and, as a result, he did not intend to lie to the grand jury. When ‘a person commits an act based on a mistake of fact, his guilt or innocence is determined as if the facts were as he perceived them,’” wrote Fitzer.
Fitzer said that Becker’s defense attorney tried to present evidence that other members of the City Council had given the report to the media before Becker emailed it to the 49ers’ Rahul Chandhok.
The People argued that the existence of other leaks did not make Becker’s actions “innocent or relieve him of the duty to keep the report confidential.” Fitzer argues that by excluding evidence of other leaks, it excludes evidence that supports Becker’s mistake of fact, such as his discussions with then City Attorney Steve Ngo about what was and was not in the public, and whether council members could disclose the report now that the media had it.
Proposed Remedy
Becker’s attorney has asked the court to remand the issue to the trial court to determine if, as of the date of the trial, there was evidence responsive to the defendant’s discovery request. If there was, he wants the court to evaluate the material and determine if a new trial should be granted.
Among that evidence, Becker’s lawyer is asking for evidence of what Mayor Gillmor did once she received the email containing the grand jury report titled “Unsportsmanlike Conduct,” claiming it is “relevant” to the defense’s claim of “selective prosecution.”
In his brief, Fitzer said the court “precluded the defense from presenting evidence that the grand jury report was inaccurate, biased and/or politically motivated. Again, such evidence would bear directly on the issue of whether Becker was the victim of selective prosecution.”
Although Becker has appealed, he has already served his sentence for perjury and violation of duty. He is now seeking the return of the items seized by investigators.
During a hearing in October, he asked for his electronic devices back. The judge ruled that he could not get his devices back at this time unless he provided the passwords to those devices. A hearing in March should offer greater clarity on the issue.
