Sasha HupkaArizona Republic
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A Maricopa County judge ruled an ongoing criminal case against two Cochise County supervisors accused of interfering with the 2022 election will move forward.
Maricopa County Judge Geoffrey Fish threw out motions to dismiss the case or remand it back to a state grand jury. That means Tom Crosby, 64, of Sierra Vista, and Peggy Judd, 61, of Willcox, still face felony counts of conspiracy and interference with an election officer.
Attorney General Kris Mayes said the decision was a win for state prosecutors.
"This is a serious case, and the charges have merit," she said in a statement. "Today's ruling by the court supports that. While the defendants are innocent until proven guilty, as are all defendants in our criminal justice system, my office is prepared to move forward with this case and pursue justice for the people of Arizona."
Dennis Wilenchik, an attorney who is representing Crosby, said the decision would be appealed quickly. He planned to file a request for a special action appeal with the Arizona Supreme Court.
"Although it may be a long shot to expect the Supreme Court to accept a special action on this given their calendar, instead of letting it play out to trial, we are concerned that if it does not do so, the instructions to the jury will be erroneous and waste everyone’s time," Wilenchik said. "Therefore, we are going to try on behalf of Mr. Crosby to right this wrong by attempting that,and hopefully avert the need for a costly and wasteful trial in the interim."
He and attorney Kurt Altman, who is representing Judd, said they were disappointed by Fish's decision. They maintained their clients' innocence and said they were confident Crosby and Judd would be acquitted if the case proceeded to a trial.
A criminal conspiracy or a political witch hunt?
Crosby and Judd currently serve on the Cochise County Board of Supervisors as Republicans. Theyvoted to delay certification of the vote in 2022, saying they wanted a meeting to hear evidence about county vote-tallying machines and whether they were properly certified. By that time, they had ignoredrepeated legal advice from the board's attorneys that their actions were illegal.
Crosby and Judd were quickly sued, including by then-Secretary of State Katie Hobbs. One lawsuit resulted in a court order to certify the result, whichthe supervisors convened to do — although Crosby didn't show up. Judd ultimately joined Supervisor Ann English, a Democrat, in voting 2-0 to send the results to Hobbs just four days before the statewide canvass.
Democratic Attorney General Kris Mayes later investigated and presented the case to a grand jury,securing an indictment.
Crosby and Judd bothpleaded not guilty to the charges during a December court appearance. In April, their attorneys argued in court that the charges were "vindictive," "politicized" and "in retribution" for supervisors asking questions amid the certification of the vote.
They challenged grand jury proceedings that led to the supervisors' indictment, aiming to get their charges tossed. Attorneys also argued that their clients should be granted legislative immunity. That privilege protects lawmakers from some legal moves for actions taken amid legitimate legislative activity and is designed to insulate legislators from punitive efforts by the executive or judicial branches of government.
The state sought to cast actions by Crosby and Judd as part of a larger criminal conspiracy to create "chaos" around the election.
Fish wrote in his rulings that the state's presentation of evidence to grand jurors last year was "fair and impartial." He said prosecutors "properly instructed" grand jurors on applicable state laws.
An earlier review of unsealed grand jury transcripts by The Arizona Republic found prosecutors read applicable laws to the grand jury numerous times and repeatedly allowed jurors to ask questions. Prosecutors also informed jurors that Crosby and Judd had the right to refuse to answer questions.
Fish also ruled Crosby and Judd weren't protected by legislative immunity in the case, noting that certifying election results is "not a discretionary function" for county supervisors.
"The failure to hold a vote and conduct the canvass ... in order to delay and hold a hearing on the validity of the voting machines, does not amount to a legislative act," Fish wrote. "Canvassing the vote is not a discretionary function. The court finds defendant is not protected by legislative immunity in the acts alleged to have taken place."
What's next?
In recent months, prosecutors and defense attorneys have begun preparations for trial.
Legal filings show that attorneys anticipate a trial lasting five to six days. The state could call up to 14 witnesses, and the defense could call up to 30.
A trial is currently scheduled for August. But attorneys have previously said that date is likely to move to September because of scheduling conflicts.
The timing could mean a trial comes as Crosby is running to keep his county supervisor seat in the general election. He faces a Republican challenger in the July primary and a Democratic opponent in November. Judd is not running for reelection.
A trial also could be averted or delayed if the Arizona Supreme Court accepts Crosby's special action appeal and doesn't affirm Fish's recent rulings.
Lawyers can participate in settlement talks at any point during the pre-trial phase. If Crosby and Judd were to accept plea deals, their trial could be vacated and they could proceed to sentencing.
The charges against Crosby and Judd are class 5 felonies, the second-least severe felony under Arizona law. If convicted, the supervisors could face prison time of up to 2 1/2 years and a $150,000 fine.
Sasha Hupka covers county government and election administration for The Arizona Republic. Reach her at sasha.hupka@arizonarepublic.com. Follow her on X, formerly Twitter:@SashaHupka. Follow her on Instagram or Threads:@sashahupkasnaps.
