But thanks to Phoenix attorney Jack Wilenchik, that may change. Wilenchik, who represents pro bono the mother of one of Simcox's victims, is behind proposed legislation that would change the federal rules of evidence to prevent accused child molesters who represent themselves from cross-examining their victims.
The legislation — S. 3524 — was introduced in the U.S. Senate's current, lame duck session on December 8 by Republican Senator Jeff Flake of Arizona and Democratic Senator Dianne Feinstein of California. It was referred to the Senate Judiciary Committee, on which both Flake and Feinstein sit.
Wilenchik tells New Times that the bill, which he wrote the first draft of before handing it off to Flake's chief counsel, will be reintroduced early next year by the two senators. The legislation prevents the cross examination of a child sex victim by a defendant acting as his own attorney. Instead, the bill states that any such cross examination shall be conducted by an attorney for the defendant, with the court's supervision.
However, the Senate bill leaves open a possible exception to this rule, stating that a defendant acting pro se (that is, on their own behalf) can cross-examine a minor victim, if the trial court concludes that such cross-examination is "necessitated by exceptional circumstances to protect the constitutional rights of the defendant."
Wilenchik says the "exceptional circumstances" language was included to preclude a possible constitutional challenge to the legislation. In the 1975 case Faretta v. California, the U.S. Supreme Court found that a defendant has the right of self-representation under the Sixth Amendment to the U.S. Constitution, which guarantees the right to counsel and the right to confront one's accusers.
"Personally, I feel this would be always constitutional," Wilenchik said of the proposed rule. "I don't know what possible exceptional circumstances there would ever be to justify letting a defendant do this. But the language is in there to try to protect it from any kind of constitutional attack, so to speak."
The idea for the legislation, of course, came from the trial of Simcox on allegations that he had molested two little girls, one of them his own daughter. Since the main evidence against Simcox was the testimony of the children, and since Simcox had rejected a plea deal in the case, the two girls, ages 8 and 9, had to take the stand.
Though Simcox was being allowed to represent himself, he was assigned an advisory counsel by the court, and the prosecution suggested that the advisory counsel ask Simcox's questions of the children. But Simcox wanted to cross-examine the kids himself, which would have allowed an alleged child molester the chance to once more torment his victims, further scarring them emotionally.
Simcox, the county attorney's office, and Wilenchik fought over the matter in Arizona's appeals court and at the state supreme court for a year, delaying Simcox's trial, which originally had been scheduled to proceed in 2015. During this time, Wilenchik petitioned the U.S. Supreme Court to intervene and address the matter. Thirteen child advocacy groups from across the country filed an amicus brief in the case, asking the high court to declare that a defendant cross examining his minor victims would be de facto, as a matter of law, traumatic for the children involved.
The issue essentially was rendered moot when in March 2016 Simcox threw in the towel on being able to personally cross-examine the children, allowing his then-advisory counsel Kerrie Droban to ask the questions for him during the trial.
On June 9, a Phoenix jury found Simcox guilty on two counts of child molestation and one count of furnishing pornography to a minor. A month later, Simcox was sentenced to nearly 20 years in prison for his crimes. By that time, the Supreme Court had denied Wilenchik's petition.
But the issue of whether a pro se defendant has an absolute right to personally question his child accusers remains unresolved; though, considering that it is not uncommon for defendants to represent themselves, the matter is guaranteed to come up again. During the trial, Wilenchik found out about a model United Nations law on the matter. The attorney says he modeled his draft legislation on the U.N.'s model legislation.
"The way I learned about that UN model law was through the Simcox case, when it was mentioned during expert testimony," he explained, adding, "The reason I did this was because I felt like there was unfinished business after we took it all the way to the Supreme Court."
Wilenchik eventually approached Senator Flake, who in turn got Senator Feinstein on board. The staffs of both Senators worked with Wilenchik to tweak the proposed statute. If it passes, it would affect federal trials and encourage the states to change their rules of evidence accordingly.
One issue persists: would a pro se defendant be able to cross-examine child witnesses to the crimes? It's not a hypothetical. During Simcox's trial, he was able to directly cross examine two minor witnesses, one of whom he had allegedly bribed with candy to see her genitals. Simcox was not facing charges concerning these children, and did not have to defer to his advisory counsel.
The U.N. model legislation does cover child witnesses as well, while the Senate bill does not explicitly include child witnesses. Still, the definition of a victim given in the bill arguably might cover a child witness, according to Wilenchik. And at the very least, the new rule would put the onus on the defense to argue that "exceptional circumstances" allows for the interrogation of minor victims by their alleged molester.
"The ultimate irony is that [a pro se defendant] may never raise the issue," said Wilenchik. "They may not know how to. That's why they need lawyers."
Proposed Senate Legislation Inspired by the Simcox Trial
