Cochise supervisors challenge grand jury proceedings, aim to get interference charges tossed

A Maricopa County judge will soon decide whether to dismiss an ongoing criminal case against two Cochise County supervisors accused of interfering with the 2022 election.

Tom Crosby, 64, of Sierra Vista, and Peggy Judd, 61, of Willcox, are each charged with felony counts of conspiracy and interference with an election officer. They currently serve on the Cochise County Board of Supervisors as Republicans.

In court on Friday, their attorneys called the charges "vindictive," "politicized," and "in retribution" for supervisors asking questions amid the certification of the vote. But the state sought to cast actions by Crosby and Judd as part of a larger criminal conspiracy to create "chaos" around the election.

The two voted to delay certification of the vote in 2022 . They said they wanted a meeting to hear evidence about county vote-tallying machines and whether they were properly certified. By that time, they had ignored repeated 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, which the supervisors convened to do — though 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 . She made clear while announcing the charges that she wouldn't tolerate "attempts to undermine our democracy." But the move has drawn criticism from some Republican leaders of other counties.

Crosby and Judd both pleaded not guilty to the charges during a December court appearance . Since then, they've filed motions to dismiss the case and challenged the grand jury proceedings that led to their indictment. On Friday, they argued those motions before Judge Geoffrey Fish.

Now, Fish must rule on the motions. He could opt to outright dismiss the case against either or both supervisors. He could choose to send it back to a state grand jury. Or, the case could continue unimpeded toward trial.

Arguments made over which court should hear case, legislative immunity, more

Crosby and Judd both filed separate motions to dismiss the case and send it back to a grand jury for a new finding.

In court, attorney Dennis Wilenchik said prosecutors were taking an overly broad reading of the state's election interference law and had gone "rogue." He presented the late vote as the result of a "misagendized" item that would have allowed county supervisors to ask additional questions about the vote tally and election procedures. He also noted the statewide canvass of the vote ultimately occurred on time and "without impediment."

"They had questions about what they were putting their stamp onto," he said.

Wilenchick and Kurt Altman, an attorney for Judd, 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.

"They’ve been indicted in this case on an absolute legislative function," Altman said. "They’ve been indicted because of their vote to table something."

Prosecutor Todd Lawson told Fish that Crosby and Judd created "confusion" that interfered with then-Secretary of State Katie Hobbs' ability to certify the election. He said their goal was to create a situation in which they could potentially swing the pendulum of power in Arizona.

Lawson also said a supervisors' duty to canvass election results is "ministerial" in state law, meaning Crosby and Judd don't enjoy legislative immunity in the case.

“The supervisors had no questions with the authenticity of the count in Cochise County," Lawson said. "Their issues were extra-election related, and where you put them in the context of a larger conspiracy, that’s where it makes sense what happened.”

The two supervisors also challenged which court their case should be heard in. The state charged them in Maricopa County, but Wilenchik questioned whether the case should be remanded to Cochise County.

Lawson said the state grand jury set the venue, determining the case could be charged in either Maricopa or Cochise counties. Prosecutors elected to bring the trial to Maricopa County, he said.

Crosby and Judd both filed motions to remand based on alleged issues with their grand jury indictments. They say prosecutors violated certain procedural rights and allowed misleading and erroneous testimony, among other allegations.

State attorneys defended their indictment, saying any "exculpatory" evidence was presented to the grand jury and that the defendants' rights were respected.

The motions from both Crosby and Judd extensively quoted portions of the grand jury proceedings, which were previously sealed by the court. The Arizona Republic is currently seeking to intervene in the case to unseal full transcripts of the grand jury proceedings.

State and defense attorneys lodged no objection to that request in court Friday. Lawson asked Fish to consider redacting jurors’ names and identities if the proceedings were to be unsealed.

Fish did not make an immediate ruling on any of the motions on Friday.

What happens next?

In recent months, prosecutors and defense attorneys have begun preparations for trial.

If Fish allows the case to proceed, 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 said Friday 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.

Additionally, 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 up to 2 1/2 years and a $150,000 fine.

Sasha Hupka covers county government and election administration for The Arizona Republic. Do you have a tip to share on elections or voting? Reach her at sasha.hupka@arizonarepublic.com . Follow her on X, formerly Twitter: @SashaHupka . Follow her on Instagram or Threads: @sashahupkasnaps .

This article originally appeared on Arizona Republic: Cochise supervisors challenge grand jury proceedings, aim to get interference charges tossed