A mother and her lawyer hope the U.S. Supreme Court shows more common sense than have Arizona courts in the case of accused child molester Chris Simcox, who is determined to personally cross-examine his child victims, two girls ages 8 and 9.
Phoenix attorney Jack Wilenchik, who represents Michelle Lynch, the mother of one of the victims, has filed a petition for a writ of certiorari with the high court in a bid to prevent the former minuteman leader, who is representing himself, from interrogating the girls when they testify in Simcox's upcoming trial, scheduled to begin April 4.
To ameliorate any trauma to the children, county prosecutors previously suggested that Simcox's "advisory counsel," who whispers advice in the former minuteman's ear, or even trial Judge Jose Padilla, read Simcox's questions to the girls. But so far, Padilla and the Arizona Court of Appeals have found that any such arrangement would violate Simcox's right to face his accusers as expressed in the Sixth Amendment to the U.S. Constitution, and the Arizona Supreme Court has let the lower court's ruling stand.
Wilenchik hopes the Supremes agree with him that, as he argues in his petition, "It is constitutionally permissible to restrict a pro se defendant from personally cross-examining his own child victims, so long as his . . . right to self-representation is otherwise assured."
He further writes:
In over two hundred years of Sixth Amendment jurisprudence, this Court has never found that the Confrontation Clause grants defendants the right to personally cross-examine witnesses against them, much less their own child molestation victims. But that is exactly what the Arizona Court of Appeals found in this case.***The issue here is not whether Defendant will ask harassing or embarrassing questions of the witness, or even what questions Defendant will ask. The issue is that allowing the Defendant to cross-examine his victims is embarrassing and harmful, in and of itself. His victims will be forced to listen to him, to answer him, to be close to him, to focus on
him and on what he is saying. He will be telling them what to do, and they will have to do it. The damage to these children – and to their esteem for a judicial system that forces them to do this – is incalculable.
Interestingly, last year Judge Padilla held an evidentiary hearing into the possible trauma that the two girls, who were 4 and 5 at the time of the abuse, might face.
Padilla found in the case of one child that having a supportive parent mitigated against any further trauma, so he will allow Simcox to question the child directly. The other girl also will be questioned by Simcox, but via a closed-circuit TV, though the girl will hear Simcox's voice.
It's a strange result: punishing one girl for having a good parent versus exiling another, when Arizona courts mostly have seemed concerned about Simcox's right to "face to face" confrontation with his accusers.
Wilenchik writes of Padilla's decision, "There is simply no compelling constitutional reason for courts to have to act in furtherance of such miserable ends."
Actually, there is another little girl of the same age who may be questioned by Simcox as a witness for the prosecution. When Simcox was arrested in 2013, he faced charges that he fondled the third girl. But those charges have since been dropped. Presumably, that girl will have to face Simcox's cross-examination as well.
In an e-mail to New Times, Wilenchik acknowledged the long odds in getting four justices to agree to hear the case, the traditional bar for a writ of certiorari. Some sources suggest that the chances of certiorari being granted is around 2 or 3 percent on average, and those chances may be even lower with the recent passing of U.S. Supreme Court Justice Antonin Scalia.
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"It’s another Hail Mary, but everybody needs a little religion, right?" wrote Wilenchik of his petition.
"The SCOTUS has never ruled on this issue and it’s a big issue," he continued. "Do rapists, stalkers, wife batterers and child molesters now have an inalienable right to personally interrogate their victims in court? The Supreme Court has never said that they do, and every single court besides our court of appeals has said that they don’t."
Wilenchik is representing Lynch pro bono, and last year scored a brief stay in the case from the Arizona Supreme Court that the state Court of Appeals had previously denied.