The Maricopa County Attorney's Office has filed a request in superior court seeking to bar alleged child molester and former Minuteman Chris Simcox from personally cross-examining child victims during his upcoming trial in Phoenix, scheduled to begin March 16.
In the 14-page pleading, dated March 6, deputy county attorney Yigael Cohen calls Simcox's invoking his Sixth Amendment right to self-representation "a constitutional crisis -- not for [Simcox], but for his child victims."
Cohen argues that the best remedy is to allow Simcox's "advisory counsel" to question the minors directly, in Simcox's stead.
You see, last month, when Judge Jose Padilla granted Simcox's request to represent himself, he allowed Simcox's public defenders to stay on in an advisory capacity and assist Simcox in various ways before, during and after the trial.
"Under such a rubric," writes Cohen, "advisory counsel, upon direction of the defendant, may question the children -- asking questions written or orally from the defendant."
Otherwise, the veteran prosecutor argues, the children will once again be "under the power and control of the Defendant without any buffer," and "the rights of the child victims will be forever violated."
I missed by a few minutes a pre-trial conference held Monday morning before Judge Padilla. But some of those present told me how Cohen presented a copy of the request to Simcox, who offered a sinister little smile in response.
Otherwise, the hearing was over quickly, with Padilla re-affirming the March 16 trial date.
Simcox's case now goes to the court's "Master Calendar" system, which will assign a trial judge. I'm told it's unlikely Padilla will be appointed.
Apparently, whoever is appointed will rule on Cohen's request.
Simcox, who has been held nonbondable since his June 2013 arrest, faces six felony counts of child molestation and the possibility of life in prison, if convicted.
The charges are the result of his alleged molestation and digital penetration of two children, now aged 7 and 8, one of them Simcox's own daughter.
A third victim, whom Simcox allegedly offered candy "in exchange for [her] showing him her vagina," is now seven.
Charges against Simcox related to the third girl have been dropped, but she is expected to testify as a witness, since the court has ruled that allegations of similar acts by Simcox can be admitted as evidence.
Allegations by a now-adult daughter of Simcox of molestation when the woman was a teen will also be allowed.
Interestingly, Cohen refers to the issue of cross-examining child victims as "a case of first impression in Arizona," suggesting that this is the first time Arizona courts have dealt with a case involving this specific set of circumstances.
In his pleading, Cohen cites a number of precedents from the U.S. Supreme Court, the Fourth Circuit Court of Appeals, and other jurisdictions to show that "Pro-per status is not a license [for the defendant] to intimidate and control his own victim," and that "a defendant's right to represent himself can and will co-exist with the duty of the trial court to ensure victims and witnesses are treated with dignity and respect."
Indeed, Cohen's proposed solution is not nearly as drastic as one ruled constitutional by the Supreme Court in the 1990 case Maryland v. Craig, in which a child victim testified through a closed-circuit Television hookup.
There, the court decided that, under certain circumstances, a "defendant's [Sixth Amendment] right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation."
There are competing rights involved: those of the defendant versus the victim, the rights of each under federal and state constitutions, and so forth. This blog post is not a full exploration of these issues, obviously.
I will not publish the Cohen's entire argument here, as the document is not fully redacted, and could identify the children involved.
Letters from some of the mothers of the victims were attached to the argument as exhibits.
They make for wrenching reading.
One mother writes that as her daughter matures, "she is understanding the depths of the wrongdoings committed against her," while attempting to remain "a happy, trusting, vibrant" girl.
"She should not have to be punished more than once by any adult who used the tenure of age and trust against her," she says.
Another victim's mom objects to Simcox's plot to make his victims "re-suffer this abuse in a public trial."
She shrewdly observes that Simcox likely anticipated such objections.
"I think he was hoping [the children] would withdraw as witnesses (his ace in the hole)," she writes, "but that is not the case. They have something important to do, so they will accomplish it, but it should be as humane and gentle as possible."
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Hopefully, the court will agree.
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