Six months after securing a flawed grand jury indictment against a former Cochise County prosecutor, the Arizona Attorney General’s Office is requesting the case be dismissed, apparently because a new grand jury did not find probable cause to reissue an indictment.
A motion to dismiss the sole count of perjury in the case of State v. Sandra Finch Russell was filed Monday. Arizona Daily Independent understands the new grand jury heard the matter in the last few days but voted a “No Bill” which means a majority of the jurors did not find probable cause for an indictment.
Judge Michael Peterson, a Graham County Superior Court judge assigned to the case due to conflicts with having a Cochise County judge involved, could sign the order at any time or wait until a previously scheduled hearing on Thursday afternoon.
Russell was an Independent candidate for Cochise County Superior Court in 2020 when she signed a declaration for qualifications noting she would be a citizen of Arizona for seven years as of taking office in January 2021. It was later discovered Russell voted in Georgia in May 2016 but Cochise County’s presiding judge at the time ruled Russell was still eligible to run for office; she came in third in the General Election.
Then nearly one year later, Assistant Attorney General Todd Lawson took the matter of Russell’s declaration to the 89th State Grand Jury which handed down a “True Bill” for one count of perjury. Russell, through attorney Louis Fidel, challenged the validity of the indictment, arguing there were several “legal and factual errors and other improprieties” with the grand jury presentation.
On Feb. 2, Peterson granted the defense motion for a redetermination of probable cause, a common practice when a judge finds one or more irregularities with how the indictment was secured. This triggered a 15-day deadline for Lawson to file a direct criminal complaint against Russell or have a grand jury begin consideration of matter again in hopes of securing a new “True Bill” for an indictment.
For unknown reasons, Lawson never filed the criminal charges himself. Instead, he started the process to present the matter to the same grand jury which previously indicted Russell. But that jury’s term expired in February without a vote on indictment. It then took several weeks for the new 90th State Grand Jury to get empaneled and hear the Russell case.
In the meantime, Fidel presented various written and oral motions for dismissal of the case due to the fact the attorney general’s office went past the 15-day remand window. Peterson refused to grant Russell’s motion to dismiss even though such a dismissal would not prevent Lawson from securing a new indictment later.
The judge scheduled an April 28 status conference on the remand issue and made it known Russell’s attorney could once again reargue for dismissal. That is now moot as Lawson, on behalf of Arizona Attorney General Mark Brnovich, filed a motion to dismiss the case and its perjury charge on April 25.
Lawson gives no reason for the State’s request, which is for a dismissal without prejudice, meaning charges can be brought forth against Russell on the same issue in the future.
Questions of whether Lawson or Peterson violated court rules, ethical guidelines, and Russell’s due process in their handling of the case led Russell to file a Petition for Special Action with the Arizona Supreme Court on April 3. That filing argued Peterson acted “without legal authority and abused his discretion by refusing to grant Mrs. Russell’s dismissal without prejudice” and that the situation with the judge’s refusal for weeks to dismiss the case in light of no new indictment called for relief under the Fourth Amendment.
Justice Clint Bolick of the Arizona Supreme Court reviewed then dismissed Russell’s petition without ruling on the merits of her arguments. According to Bolick, Russell needed to first present the special action to the Arizona Court of Appeals and any claim for habeas corpus needed to be addressed directly with Peterson.
The presiding judge of the court of appeals has set several deadlines for the parties and is expected to rule on the matter sometime in May. Russell is asking that the judges move ahead with her petition even if the criminal case is dismissed, given the statewide importance of clarifying the 15-day rule so that “the same erroneous application of the rule is capable of repetition subjecting other similarly situated defendants to unconstitutional restraints on their liberty,” she argues.
Those restraints stem from pretrial conditions placed on Russell at Peterson’s order during the Oct. 25 arraignment. Russell was released without bail pending trial but was required to report for a mugshot, fingerprinting, and to “abide by the directives of Pretrial Services.”
Those directives have remained in effect -such as warrantless searches of her residence, workplace, “and/or other locations” at the discretion of Pretrial Services staff- despite the attorney general’s office conceding n mid-March that “there’s currently no finding of probable cause: to charge Russell with anything.
In addition, Russell has not been allowed to leave Arizona without permission of the court, even though she has a young daughter involved in an out-of-state custody arrangement. When Russell does request court approval for travel, she must disclose personal information which is placed in the public court file.
It is those restrictions which Russell contends in her filings to Peterson, the Arizona Supreme Court, and now the Arizona Court of Appeals that have unconstitutional once Brnovich’s office failed to refile charges in a timely manner.
Further aggravating the situation, and the cost, for Russell is that she had been scheduled to stand trial April 5 on whatever charge the new grand jury may have filed, if any. Peterson did not vacate the trial until March 21 and then set the April 28 review hearing.
According to Russell’s petition, as of April 28 she would have been subjected to pretrial detention restraints on her liberty for 84 days “with no indictment or arrest warrant in place” based on any determination of probable cause.