Former Minuteman leader and accused child molester Chris Simcox started his Thursday in Maricopa County Superior Court trying to get Judge Jose Padilla kicked off his case, claiming Padilla favored the prosecution, was a member of La Raza, and therefore was biased against him.
Simcox's request quickly was denied by another judge, but this worked to his advantage, as that afternoon, Padilla agreed with Simcox that he should be allowed to personally cross-examine his alleged child victims, ages 7 and 8, one of them Simcox's own daughter.
The erstwhile Republican U.S. Senate candidate is representing himself in his upcoming trial on six counts related to accusations that he molested two girls in 2013. Simcox has two "advisory counsel" from the legal defender's office to help him out.
The county attorney's office had asked Padilla to prevent Simcox from interrogating the children directly and to allow the advisory counsel to ask Simcox's questions for him.
Simcox asserts that such an arrangement will violate his right under the U.S. and Arizona Constitutions to act as his own attorney and confront his accusers.
Padilla signaled from the start of the Thursday afternoon hearing that he had made up his mind Simcox was right and the MCAO was wrong.
As soon as deputy county attorney Keli Luther told Padilla that the prosecution would only be offering oral arguments, and no evidence, Padilla shot her down.
"If there's no evidence, I'll deny [the motion] right now," he told Luther. "All we have are the letters from the moms."
Padilla was referring to letters from the mothers of the two victims, and from a mother of a child witness to the court.
This third girl claims Simcox bribed her with candy to see her genitals.
In those letters, the mothers described the mental torment of the children and their fear that the kids will be traumatized further if Simcox is allowed to question them.
With one victim's mother in the courtroom, Padilla brushed those concerns aside.
"With all due respect," he said. "[The mothers] are simply not qualified to make that assessment."
There was an audible gasp from an observer in the court when Padilla said this.
To her credit, Luther made an impassioned argument that Simcox should not be allowed to "control his own victims in the courtroom," and she pointed to U.S. Supreme Court and federal appellate court rulings, which allowed for special accommodations to be made in similar instances, while still protecting the rights of the accused.
But Padilla said he would need evidence that the children are afraid of Simcox and would be hurt by Simcox's cross-examination. He claimed that allowing advisory counsel to ask questions of the girls could bias the jury against Simcox.
(Pardon my editorial comment here, but it seems like the charges against Simcox will do far more to bias a jury than having an attorney ask some of Simcox's questions.)
Luther cited the Arizona Constitution's Victims' Bill of Rights, which states that victims have the right "To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process."
She also pointed out that having a pre-trial evidentiary hearing on the issue would be self-defeating.
"If we have an evidentiary hearing," she said, "then we have to bring the children in to be questioned by someone they're afraid of."
You know, just what the prosecution's trying to avoid.
But Padilla refused to budge, and essentially made Simcox's arguments for him, while Simcox sat quietly in pink handcuffs and jailhouse stripes, listening to the give and take.
Luther and the lead attorney on the case, Yigael Cohen, indicated that they would seek a stay of the trial from the Arizona Court of Appeals.
Padilla gave them till Tuesday, stating that if the Court of Appeals did not stop him, jury selection in the case would begin then.
Afterward, Simcox asked Padilla some questions regarding a slideshow he wanted to enter into evidence, and asked how the court would handle his testimony.
Smiling, the judge made a reference to a scene in the Woody Allen movie Bananas, where Allen represents himself in trial, and questions himself, running from the counsel's table to the stand to answer his own questions.
"We're not going to do the Woody Allen thing," Padilla told Simcox.
Instead, Padilla said he would allow Simcox's advisory counsel to question him, asking questions written out ahead of time, or Padilla could do it.
The irony of Padilla's allowing Simcox to be questioned by advisory counsel was not lost on Michelle Lynch, the mother of one of the girls allegedly molested by Simcox.
Lynch left the courtroom in tears. Outside the court building, she vented about Padilla's statements.
"I'm really, really offended by his comment about me," she explained. "He says, `With all due respect'? He showed me no respect at all in there."
She wondered about the efficacy of the Victims' Bill of Rights, and worried about how her daughter would be affected by being interrogated by Simcox.
In her letter to the judge, Lynch described the emotional changes in her daughter since the alleged incident.
The child suffers panic attacks, trouble sleeping, nightmares, and fear of unlocked doors and windows. The girl also frequently lashes out in anger against others.
"Padilla just ruined my daughter's healing process," she said.
Judge Padilla is no stranger to controversy. In 2009, he refused to allow a mother and her son to leave Arizona and relocate out of fear that her son's dad would harm them.
A couple of weeks later, the father killed the woman, her mother, and himself.
Criticism of Padilla over that case and others can be found on several sites online. Some have accused him of being "pro-father."
His most recent evaluation by Arizona's Commission on Judicial Performance Review states that Padilla "meets judicial performance standards," with a score of 73 percent.
At least, Padilla's ruling will put to bed Simcox's attempt to paint the judge as biased in favor of the prosecution, as well as the shibboleth that Padilla's prejudiced against the former Hispanic-hunter.
Simcox caused a little chaos earlier in the day, when he moved that Padilla be removed for cause.
In a hastily-arranged hearing before Judge Joseph Welty, presiding judge of superior court, Simcox offered up a lame argument that because Padilla had granted continuances to the prosecution in the past, he could not be impartial.
Welty denied the request. Then Simcox told Welty that he had done "research" on Padilla and found that Padilla was a member of No More Deaths and La Raza, and so would be politically opposed to Simcox because of the latter's "work in securing the border."
In response, Welty pointed out that the superior court tries neo-Nazis all the time, though you'd be hard pressed to find a judge sympathetic to any of them.
Welty said that even if Simcox's allegations were true, he was sure Padilla could set that aside and be impartial.
On Padilla's biography on the superior court's website, the judge lists under "Committees/Associations," the following:
Los Abogados Hispanic Bar Association,
Former member of the Association of Trial Lawyers of America
Participated in leadership roles of La Raza & Barrio Law Student Organizations during law school.
In a 2008 New Times article, Padilla, a Vietnam Vet, stated that he's been racially-profiled by law enforcement in the past.
He said he just fell into being a judge, and referred to himself as "Latino Forrest Gump."
MCAO spokesman Jerry Cobb confirmed to me that the county attorney soon would be filing a special action in the case with the Arizona Court of Appeals.
The county's motions refer to this clash of victim's rights and defendant's rights as "a case of first impression in Arizona," meaning it is the first time an accused child molester may be allowed to cross-examine his victims.
That "first impression" may be a really bad one, unless the Court of Appeals steps in.
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