State argues against indicted Cochise County supervisor's motion

Assistant Attorney General Todd Lawson claims that Crosby, indicted for his role in seeking to delay certification of the 2022 election, cannot legally access the transcript or any material from an unrelated — and now-sealed — criminal case. And even if his lawyers could, Lawson said, the effort would be "futile,'' since it's too late for Crosby's attorneys to ask the court to remand his case to the state grand jury.

"The entire (unrelated) Russell case, including grand jury transcripts, has been sealed and the defendant is not eligible to access the case records under any circumstance," Lawson told Maricopa County Superior Court Judge Suzanne Marwil. "But even if he were eligible to access the transcripts, the defendant does not make a sufficient showing of need to warrant unsealing the transcripts of a separate, sealed case."

But Crosby's lawyer says he needs those records because it will help him prove that William Knuth, the lead investigator in the state's case against his client, is a "liar " — and, by extension, will result in dismissal of the charges against him.

The records at issue involve Knuth's testimony in the grand jury proceedings that resulted in the indictment of Sandra Finch Russell. A 2020 candidate for Cochise County Superior Court, she was charged with perjury over legal documents about how long she had been an Arizona resident.

Knuth was the state's chief investigator and lone witness who testified to the grand jury in that case.

That case eventually was dismissed after a judge concluded Knuth had made misstatements.

What makes that relevant to Crosby is that Knuth also was the lead investigator in the case against Crosby and fellow Cochise County Supervisor Peggy Judd, accused of conspiracy and interference with an election officer after they voted to delay certification of the 2022 election past the state-mandated deadline.

Knuth eventually quit after an internal review at the Attorney General's Office found he submitted false reports and time cards.

Judd eventually took a plea deal, leaving Crosby as the sole defendant in the Cochise County election case.

Now, in a bid to send the case back to the grand jury, Crosby's attorneys are digging deeper into the state's former investigator and asking the court for a copy of the grand jury transcript from the criminal case against Russell.

Russell faced a single perjury charge for attesting to being an Arizona resident for at least seven years prior to her run while separately signing and affirming her citizenship in Georgia in 2016.

After her indictment, Russell's attorney, Louis Fidel, asked the court to send her case back to the state grand jury, claiming Knuth had misled jurors on the facts and law.

Russell's perjury charge was remanded, then dismissed, and she later had the entire case sealed from any public court record.

But Crosby's attorneys somehow obtained her motion to remand and are now using it as the basis to ask for the entire grand jury transcript, claiming it will show Knuth has a history of lying.

Lawson told the court Crosby's attorneys have no right to the sealed grand jury transcripts in the first place.

Arizona law does allow sealed records to reemerge to impeach a party or witness in a subsequent trial. But access is limited to a short list of public entities and officers, including the court, law enforcement agencies, prosecutors, probation officers, and the departments of child safety, juvenile corrections and corrections.

Because Crosby is none of those people or entities, Lawson argued, he is "not authorized to receive the grand jury transcripts from a sealed case under any theory or statute.''

In any case, Lawson claimed, the transcript won't do Crosby any good.

Crosby already asked the court to remand his charges once and was not successful.

In February, his attorneys claimed the state failed to correctly instruct the jury on the law, used privileged evidence and failed to correct misleading testimony from former Cochise County Attorney Brian McIntyre. The court denied that motion.

Crosby's attorneys have made clear they intend to ask the court to reconsider that ruling. But Lawson claims it's too late, since the court requires a motion to remand within 45 days of the filing of the grand jury transcripts — a deadline that expired more than two years ago.

And in any case, Lawson points out, Knuth was not at issue in Crosby's initial motion to remand.

"Knuth's name appears nowhere in the motion,'' he wrote. "Even in the defendant's reply, (special agent) Knuth is referenced only once, and only in relation to the defendant's argument that the state presented legislatively privileged material to the grand jury. Thus, there is no claim related to the credibility of (special agent) Knuth's testimony to reconsider here.''

Finally, Lawson argues, the interest in grand jury secrecy outweighs Crosby's "futile attempt to seek reconsideration of his original motion to remand.''

Lawson asked the court to deny the motion.

A reply from Crosby's attorneys is due Sept. 30, and the parties are due for oral argument on the matter Oct. 9.