With the Arizona Supreme Court refusing to intervene in the case, Maricopa County Superior Court Judge Jose Padilla today set a start date of April 4 for the trial of former Minuteman and accused child molester Chris Simcox.
"We need to get this to trial," Padilla said during a status conference, held one day after the state Supreme Court denied petitions for review from the County Attorney's Office and lawyers for Simcox's alleged victims.
Despite a new trial date getting set, a lawyer for the prosecution promised yet another appeal, while Jack Wilenchik, an attorney for the mother of one victim, vowed to seek a review by the U.S. Supreme Court
The issue? Simcox, who has been acting as his own attorney since early 2015, wants to cross-examine the two little girls he's accused of molesting, one of whom is his own daughter.
The children were around 5 and 6 years old at the time of Simcox's arrest in 2013. Initially, Simcox faced charges on a third victim. Those charges have since been dropped, though the third little girl may testify during the trial.
If Simcox is convicted, he faces the possibility of life in prison. He has been held non-bondable in the custody of his former political ally, Sheriff Joe Arpaio, for the past two and a half years.
Both the County Attorney's Office and lawyers for the victims have been fighting tooth and nail to keep Simcox from directly cross-examining the girls, but the state's higher courts have not been helpful.
Though the state Supreme Court shot down the prosecution's and the other attorneys' motions on Tuesday, the court left open the door for another area of appeal: the actual accommodations Padilla has ordered in the case.
In August, following a hearing with expert testimony, Padilla ruled that Simcox could directly cross-examine one child victim, a neighbor and playmate of his daughter's, but Padilla found that Simcox's daughter could be further traumatized by being in the same room as her father. So Padilla will allow Simcox to question the child via closed-circuit TV.
Both the state and the victims' attorneys have proposed that Simcox's advisory counsel be allowed to ask questions of the children on Simcox's behalf or that the judge himself ask the questions.
At today's hearing, Deputy County Attorney Amanda Parker argued on behalf of a limited restriction on Simcox's right to represent himself, a legal by-product of the U.S. Constitution's Sixth Amendment's right to an attorney.
The children would be present in the courtroom, but Simcox's advisory counsel, Robert Shipman, would questions the girls, Parker offered.
"Under the Sixth Amendment," Parker said, "your honor can minimally restrict [Simcox's] right to representation."
But Padilla remained intransigent.
"Minimally or not," Padilla stated, "I think the U.S. Supreme Court is clear that anything that makes it appear Mr. Simcox is somehow not representing himself [would be unconstitutional]."
Parker vowed a further appeal of Padilla's ruling.
In dirty jail stripes and cuffs, Simcox stood at the lectern throughout the hearing. Once Padilla and the attorneys finished their back and forth, the onetime Minutemen leader argued he should be allowed to bring forth evidence that he says will show another individual had sexual contact with his daughter. This would not account for other victims, however.
Padilla told Simcox that the issue concerning what the judge termed "rape shield" evidence already had been decided. Originally, Padilla ruled that Simcox could bring in such evidence, but Padilla later was overruled by the Arizona Court of Appeals.
Simcox persisted, insisting that the decision of the state appeals court did not preclude the argument he wished to make. Sighing, Padilla agreed to allow Simcox an hour of oral argument on January 29.
One courtroom observer cracked afterward: "Padilla did that just to shut [Simcox] up."
Following the hearing, attorney Wilenchik, who represents a victim's mother, Michelle Lynch, expressed disappointment that the Arizona Supreme Court refused to hear the case.
"I do think they should've taken a look at this," Wilenchick said of the state Supreme Court judges. "This involves an issue of the interpretation of the United States Constitution that applies not only to victims of child molestation, but [to] the victims of stalking, the victims of rape. This situation can and will come up again."
Which is why Wilenchik vows to go directly to the highest court in the land.
"This is an issue of first impression," he explained, "meaning it's the first time this issue's come up in the state. Frankly, it's the first time the issue has come up in the entire country. For this reason, I will be appealing to the United States Supreme Court."
Keep Phoenix New Times Free... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we would like to keep it that way. Offering our readers free access to incisive coverage of local news, food and culture. Producing stories on everything from political scandals to the hottest new bands, with gutsy reporting, stylish writing, and staffers who've won everything from the Society of Professional Journalists' Sigma Delta Chi feature-writing award to the Casey Medal for Meritorious Journalism. But with local journalism's existence under siege and advertising revenue setbacks having a larger impact, it is important now more than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" membership program, allowing us to keep covering Phoenix with no paywalls.