Alleged child molester, ex-Minuteman jefe, and one-time Republican U.S. Senate candidate Chris Simcox is demanding that a Maricopa County superior court judge allow him to interrogate his alleged child victims in an upcoming trial.
In a recently filed motion, Simcox, 54, rejected the county attorney's attempt to shield the girls, now aged 7 and 8 (one of them Simcox's own daughter) from direct cross-examination by the disgraced nativist.
Simcox now is acting as his own attorney in the case, with the assistance of two "advisory counsel" from the county legal defender's office.
In response to Simcox's February decision to represent himself, prosecutor Yigael Cohen asked the court to allow the children to be questioned by Simcox's advisory counsel, so as to avoid further traumatizing the children, while respecting the rights of the accused.
But in his rebuttal to Cohen, Simcox invoked his right to confront his accusers under both the Arizona Constitution and the Sixth Amendment to the U.S. Constitution, arguing that "being able to cross-examine the children" is "a crucial cornerstone of his desire to present his best defense."
According to Simcox, the children "were never subjected to...harm in the first place," so the county attorney is "asking the court to find the defendant guilty...before the trial has even begun."
Simcox has been held nonbondable in the county jail for nearly two years since his arrest by Phoenix police in June 2013. He stands accused of six counts related to his alleged molestation of the girls, who were 6 and 5 years old at the time.
Initially, he also was charged in relation to a third child, now 7, whom Simcox allegedly bribed with candy to expose her genitals to him.
Simcox no longer faces charges associated with that little girl, but she is expected to testify as a witness for the prosecution.
As Simcox has turned down a generous plea deal from the county, he faces the prospect of life in prison, if convicted of the most serious charges.
In Cohen's pleading, the deputy county attorney cited U.S. Supreme Court and federal appellate decisions to prove that courts have allowed limits to a pro per defendant's right to confront accusers when kids are involved.
Such compromises have run the gamut from the use of curtains and closed-circuit TV, to simply having the judge, or in this case, the advisory counsel, question the child witnesses.
But Simcox maintains that only he can question the kids.
"The ability to manage and direct the examination of witness accusers," he writes, "reaches beyond the form of simply writing questions that advisory counsel shall then read the witnesses. The form of questioning witnesses includes the pace, expression, style, mannerisms and sensitivity to personal knowledge as well as the situational context surrounding the alleged incident."
Simcox's motion is neatly written by hand on lined paper and signed by him. It contains footnotes, cites numerous court cases from other jurisdictions, and uses legal jargon with ease.
Yet, the ex-Minuteman leader does not have a law degree. He could not have produced this document on his own.
At one point, Simcox writes that,
Advisory counsel assigned to defendant is prohibited from doing anything for the defendant other than answering questions. The advisory counsel are strictly advisory, they cannot even conduct research on behalf of the defendant. According to James Logan, Director of Maricopa County Office of Public Defender Services:
"My [office] functions as I understand it is to remain passive throughout the entire trial, to take no affirmative actions whatsoever. I...am not his research assistant. I am not his paralegal. I am simply here essentially in the event he changes his mind and wants me to proceed as the counsel of record..."....
If advisory counsel were to be forced into the role of questioning the witnesses they would be subjected to potential for claims for ineffective assistance of counsel. Advisory counsel should not be exposed to claims of ineffective assistance of counsel.
Interesting argument, particularly since Simcox has already been advised by the court that he will not be able to claim ineffective assistance of counsel on appeal, if he acts as his own lawyer.
Simcox's concern for the legal well-being of his advisory counsel is telling.
After all, if advisory counsel is supposed to do nothing more than answer questions and "remain passive," then one must ask: Who composed this legal document for Simcox?
Because, by Simcox's logic, that mysterious individual or individuals could be on the hook for "ineffective assistance of counsel."
Since I last wrote of this case, the Master Calendar system of the superior court appointed Judge Jose Padilla as the trial judge.
Some courtroom observers had opined to me that the chances of Padilla being chosen were slim, though Padilla has been the most recent judge on the case, presiding over it for the last few months.
(Note: In Maricopa County, cases may be handled by more than one judge prior to trial. If the case is not settled before a drop-dead trial date, the court assigns a judge to oversee the trial.)
During one previous hearing, Simcox tried to get Padilla removed, though this was shot down pending the official appointment of a trial judge.
Now that Padilla has been selected, it will be interesting to see if Simcox tries that move again.
Simcox's trial was scheduled to begin last week, but Simcox did not appear in court, and it was announced that Simcox was in the hospital, though for what, even the court seemed unaware.
Asked about Simcox's status, sheriff's office spokesman Chris Hegstrom e-mailed me the following statement:
"In regard to Inmate Chris Simcox...he is currently housed at the Lower Buckeye Jail. As for his departure to the Hospital last week, due to HIPAA laws we cannot disclose reasons for the hospital visit."
Padilla has scheduled a hearing for Thursday morning on the issues surrounding cross-examination of the children and "the status of the defendant's physical condition."
Meanwhile, regarding Simcox's assertion that his alleged victims were never subjected to harm, I'm reminded of one of the letters from the mothers of the victims to the court.
Since the alleged incident, this mother says her child has experienced panic attacks, frequent nightmares, and "does not sleep through the night." The girl is extremely emotional and often angry, "screams at others and is now hitting or attempting to hit."
This mother further writes:
"Allowing Mr. Simcox the ability to address my daughter, I fear, will only set [her] back in her healing. and quite possibly exacerbate her symptoms and anxiety/panic attacks."
The prosecution's suggestion seems a reasonable compromise to a thorny constitutional issue. And it would prevent Simcox from turning Padilla's courtroom into a macabre circus where little children are mentally abused for Simcox's sick pleasure.
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Hopefully, Judge Padilla will agree.
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