TEMPE, AZ — Maricopa County Attorney Rachel Mitchell is fighting a court order requiring her to testify about her office's handling of charges against 68 pro-Palestine protesters.
The Maricopa County Attorney's Office (MCAO) filed a special action in Maricopa County Superior Court alleging that a county justice court erred in granting an Anti-SLAPP motion filed by the protesters.
The lead defense attorney in the case called the special action a desperate attempt by Mitchell to avoid taking the stand.
“What exactly is happening that has this county attorney so scared to take the stand?" said attorney Steve Benedetto. "What we are talking about is her walking into a justice court, where her lawyers practice every single day, swearing to tell the truth, presumably telling the truth, and that would be the end of it."
The county attorney's office declined to comment beyond what was filed in court.
In the special action, MCAO claims Justice of the Peace Tyler Kissell was wrong to rule that she must testify in mid-November about whether her office retaliated against protesters for their free speech.
The move comes after the county attorney publicly stated in August that she would testify if needed.
"We’re proceeding to get ready for it. We are looking at the details of the ruling that the justice of the peace made. If we need to put more on the record, I will. If I need to testify, I will," Mitchell said at an August press conference, just days after the court's initial ruling.
But two months later, Mitchell's office is making a last-ditch attempt to avoid that testimony, filing multiple legal challenges and claiming Arizona's anti-SLAPP law is unconstitutional.
The case stems from an April 2024 protest at Arizona State University, where 68 pro-Palestine protesters were charged with trespassing. Defense attorneys filed an anti-SLAPP motion, claiming the protesters were charged in retaliation for their free speech rather than for actual crimes.
A justice of the peace ruled there was enough evidence to move forward with the anti-SLAPP claim. Under Arizona law, this means the Maricopa County Attorney's Office must prove it didn't retaliate against the protesters, or the charges will be dropped.
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If Mitchell and other top prosecutors are forced to take the stand, they will be cross-examined by Benedetto.
He’s the same attorney who represented dozens of Black Lives Matter protesters, who were falsely charged by the county attorney's office in 2020. Those protesters got a $6 million settlement.
In the ASU case, Benedetto has filed documents saying there’s evidence showing ASU "engaged" with MCAO to "stop the protest" and arrest people before the protest began.
The special action marks the fourth attempt by Mitchell's office to stop the Anti-SLAPP defense. The office first opposed the move, then filed a motion for reconsideration before filing a motion for designation of a special action.
All those moves were unsuccessful.
"So, this is their fourth bite of the apple," Benedetto said.
In their 46-page special action filing, the county attorney's office wrote: "The gravity of this situation cannot be overstated… Unless this Court corrects the justice court's clear factual and legal error, County Attorney Mitchell will unjustifiably become the first elected prosecutor in the country to be called to the stand to defend a prosecutorial charging decision in an anti-SLAPP proceeding."
The situation presents an unusual political dynamic: Mitchell, a Republican, is challenging the constitutionality of an anti-SLAPP law passed by Republican state legislators in 2022.
The same law has been used by election deniers, including Rudy Giuliani, to challenge criminal charges related to attempts to overturn the 2020 election.
The county attorney's office declined to comment beyond what was filed in court.
Contact ABC15 Chief Investigator Dave Biscobing at Dave@ABC15.com.
This digital article was produced with the assistance of AI and converted to this platform based on the broadcast story written and reported by ABC15 Chief Investigator Dave Biscobing. Our editorial team verifies all reporting on all platforms for fairness and accuracy.
