Ex-Minuteman leader and alleged child molester Chris Simcox has dropped his controversial bid to personally cross-examine two alleged child victims during an upcoming trial, according to attorneys involved with the case.
Simcox, who is representing himself, told Maricopa County Superior Court Judge Jose Padilla that he was waiving his attempt to question the girls, ages 8 and 9, and would allow his current advisory counsel Kerrie Droban
to cross-examine the children on his behalf.
"He actually exercised something called 'hybrid representation,'" Droban told New Times
shortly after the Monday hearing. "In this situation, [Simcox] felt it would be better if I handled the cross-examination of the children and he will do the remaining case."
For the past year, Simcox, 55, has been fighting the efforts of prosecutors and victims' lawyers to have either his advisory counsel or Padilla ask questions of the two girls for him, so as to avoid further traumatizing the children.
, an attorney for Michelle Lynch, one of the mothers of the alleged victims, said that Simcox "completely threw in the towel" on the issue during Monday's conference, thereby removing a potential roadblock to Simcox's trial, currently scheduled for April 4.
"If I had to say why I think Simcox [caved], it's because he's been sitting around in custody now for an extra year," Wilenchik told New Times
. "I think he just saw the writing on the wall. He really wants to have his trial."
Wilenchik, who is representing Lynch pro bono, filed a petition with the U.S. Supreme Court in February,
asking the high court to rule on whether or not an accused child molester has a right to personally cross-examine his or her own victims.
The petition has drawn the support of several stakeholder organizations, such as the American Professional Society on the Abuse of Children, the National District Attorneys Association, the National Crime Victim Law Institute, and the Survivors Network of those Abused by Priests, or SNAP.
Despite today's turn of events, Wilenchik believes the issue is not moot, in part because there always is the possibility that the Simcox case could be retried, if there is a successful appeal.
"Even [Judge Padilla] says he believes the Supreme Court appeal should stay in place because he believes it's a big issue," said Wilenchik. "The other thing is, how does this come up before the Supreme Court otherwise?"
Droban seemed to agree.
"In many of these cases, strangely enough, clients do represent themselves," she said. "So it's an issue that's going to repeat itself if it's not addressed, at least in the Supreme Court."
Simcox has been held non-bondable in county jail after being arrested by Phoenix Police June 2013 for allegedly molesting three girls, ages 5 to 6, one of whom is his own daughter.
Since that time, charges on one of the three girls has been dropped, with Simcox still facing six counts involving sexual conduct with a minor, child molestation, and furnishing obscene items to a minor.
The onetime dark-horse Republican U.S. Senate candidate, who maintains his innocence, previously rejected a generous plea offer from the prosecution. He faces the possibility of life behind bars if convicted. After Simcox lost an attempt to block prior allegations from being entered into evidence, the ex-Minuteman moved to represent himself in the case, a request Judge Padilla granted.
Following a hearing last year on Simcox's effort to directly cross-examine the child victims, Padilla ruled that one of the children could be cross-examined by Simcox face-to-face, with the girl taking the stand in the courtroom. The other child would be questioned by Simcox via closed circuit TV.
This ruling by Padilla seemed likely to stand till last week, when the state appeals court stepped in, vacating Padilla's ruling and remanding it back to his court for reconsideration.
The state appeals court panel found fault with statements by Padilla in his decision to the effect that the judge was "unable to find any authority ... which would allow the trial court to make exceptions to the right of self-representation."
The appeals court spanked Padilla on this assertion, pointing out that in a previous order to his court, the state appeals panel "specifically held ... that the right of a self-represented defendant to personally conduct a cross-examination is not
absolute." (Italics, theirs.)
Considering Simcox's reversal on Monday, Padilla's previous ruling on one of the children being questioned via closed circuit TV could be moot.
But Padilla may revisit that issue in a pre-trial conference, according to Wilenchik.