A three-judge panel of the Arizona Court of Appeals has declined to halt a pending trial, where accused child molester and ex-Minuteman leader Chris Simcox will be allowed to cross-examine his alleged child victims.
After a telephonic hearing held Monday, Judges Margaret Downie, Patricia Norris and Randall Howe refused to reverse a trial court's decision to let Simcox, who is representing himself, directly interrogate two girl victims, ages 7 and 8, one of whom is Simcox's daughter.
A third girl, age 7, is expected to testify as a witness. She alleges Simcox bribed her with candy to see her genitals.
The appeals panel set an oral argument on the underlying issues in the case for April 29, conceding that "[the] trial will likely proceed, with cross-examination of the witnesses...occurring before this court can address the special action petition on the merits."
Last week, superior court Judge Jose Padilla rejected a request by the Maricopa County Attorney's Office to permit Simcox's two "advisory counsel," who are assigned to assist Simcox in representing himself, to ask questions of the children in Simcox's stead.
Simcox argues that deferring to the two public defenders in this instance would rob him of his rights under the U.S. and Arizona Constitutions to confront his accusers.
Judge Padilla agreed with Simcox, telling prosecutors that allowing the advisory counsel to ask questions of the child victims might prejudice the jury against the defendant.
But in an ironic twist, Padilla told Simcox that when it came the ex-Minuteman leader's turn to take the stand, either Padilla or the advisory counsel would ask questions written out by Simcox in advance.
On Friday, Deputy County Attorney Keli Luther filed a petition for special action in the Simcox case, requesting a stay in the trial until oral arguments could be held before the appeals court.
Luther cited a "very real risk of irreparable harm" to the victims, who will be forced to "endure the defendant's cross-examination without the buffer of defense counsel."
She noted that:
Children who are victims of sexual abuse already re-experience that abuse when they are forced to testify in a courtroom in the presence of the accused. The trial court's order inappropriately subjects the victims in this case to additional trauma by allowing the very man who victimized them to question them on the stand. This issue undoubtedly raises a question of public importance. The harm to the victims and society can only be stopped by preventing Defendant from personally cross-examining the victims and allowing advisory counsel to conduct the cross-examinations - a remedy recognized by several jurisdictions including the United States Court of Appeals in Fields v. Murray. Fields v. Murray, 49 F.3d 1024, 1035 (4th Cir. 1995).
Luther also wrote that allowing Simcox to question the children violated the Arizona Constitution's guarantee of a victim's right, "To be treated with fairness, respect, and dignity, and to be free from intimidation, harassment, or abuse, throughout the criminal justice process."
However, the Appeals Court was not swayed by this argument, or by the U.S. Supreme Court and federal appeals court precedents Luther cited.
Asked about its next move, a spokesman for the county attorney replied that the office was reviewing its options at present.
Simcox has been held nonbondable since 2013 on six counts related to alleged incidents of child molestation.
If convicted of the most serious charges, he faces the possibility of life in prison.
On Monday, questionnaires were distributed to potential jurors in the Simcox trial.
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Jury selection is expected to begin Tuesday, with testimony possibly commencing as early as Thursday.
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