By Howard Fischer
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PHOENIX - An attorney for one of the defendants in the Arizona "fake electors'' case is asking the Supreme Court to reject a last-ditch bid by Attorney General Kris Mayes to salvage her case against his client and everyone else.

Andrew Pacheco is telling the justices that Maricopa County Superior Court Judge Sam Myers was on firm legal ground earlier this year when he tossed the indictment against both the 11 Republicans who signed paperwork declaring that Donald Trump had won the 2020 election as well as others close to the president who were accused in creating a scheme to deny the state's 11 electoral votes to Democrat Joe Biden.

Since that time, the state Court of Appeals has refused a request by Mayes to review that ruling. And now she wants the state's high court to weigh in.

In new court filings, Pacheco, who represents Tyler Bowyer, one of the 11 who signed a statement declaring Trump had won, is urging the justices to reject her petition. He said there was more than enough reason for Myers to declare the indictment flawed.

If the justices side with him, that ends the current case against all remaining defendants. The only way for Mayes to proceed at that point would be to either convene a new grand jury and get a new indictment - this time with the evidence Myers said was missing - or file a direct complaint and conduct a preliminary hearing.

The justices have not set a date to consider the issue.

Pacheco represents Tyler Bowyer who was one of the 11 electors.

He, like the others, is charged with conspiracy, fraud and forgery over the preparation of the document declaring that they pledged to vote for Trump and  were the rightful electors despite the fact that he lost Arizona by 10,457 votes.

The charges against others, including aides and attorneys for Trump, are based on allegations they were the ones who came up with the plan for Arizona and other battleground states to deny Biden the necessary 270 electoral votes, a move that could have let Congress decide the outcome of the race.

But Myers said the grand jurors were never given a copy of an 1887 federal law, which directed Congress how to deal when they get multiple slates of electors from any state.

What makes that failure significant, Pacheco is telling the justices, is that prosecutors knew when they were presenting the case to the grand jury that some of the defendants claimed their actions were authorized by what is known as the Electoral Count Act.

He said that, at the time the Republicans prepared their documents claiming to be the rightful electors, there actually were pending lawsuits "which, if successful, could have changed the Arizona election results.''

And he is arguing is that Myers was right to say the grand jurors, while being told about the law, never got the actual text might have caused them not to hand up an indictment.

Mayes, for her part, contends that failure is irrelevant.

"The primary function of the grand jury is to determine whether probable cause exists to believe that a crime has been committed and that the individual being investigated was the one who committed it,'' she said in her own filing with the Supreme Court.

Mayes said it's irrelevant whether those indicted believed their actions were in accordance with - and protected by - the Electoral Count Act. That, she said, is something they can claim at their trial as an "affirmative defense'' that they never intended to break the state laws they are charged with violating.

"The grand jury's role was to determine whether probable cause existed that defendants had intent to defraud when they submitted the false ballots and then strived for a month to have them accepted as the true ballots,'' Mayes told the justice.

Pacheco told the justices that there was no reason for the Attorney General's Office to deny the grand jurors the full law rather than just a discussion.
"Given that the grand jury heard 13 days of testimony, requiring the state to read a 20-page statute to the grand jurors is hardly an arbitrary or capriciously burdensome requirement or an abuse of discretion, especially when the statute is central to the defense,'' he said

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