Ex-Minuteman likely to question girls in sex-abuse trial

Maricopa County prosecutors have lost what may have been their final chance to shield two young girls from a cross-examination by Chris Simcox, the former Minuteman accused of molesting them.

The case, likely the first of its kind in Arizona, pits the constitutional rights of a defendant against those of the alleged victim, and has drawn national scrutiny from victims' and civil rights organizations.

Jury selection was underway Tuesday, and officials say opening arguments could start as early as Thursday.

Phoenix police arrested Simcox, 54, in June 2013, following allegations that he molested three young girls, including one in the shower and another after bribing her with candy. One of the girls is not listed as a victim, but will serve as a witness, officials said.

Simcox had made a name for himself as the co-founder of the border-watch vigilante group Minuteman Civil Defense Corps, and for running a brief campaign to unseat Arizona U.S. Senator John McCain.

In February, Maricopa County Superior Court Judge Jose Padilla gave Simcox the green light to represent himself in the pending trial. Simcox faces two charges of child molestation, three counts of sexual conduct with a minor and one count of furnishing obscene or harmful items to minors.

Charges of sexual conduct with a minor carry a mandatory life sentence, with possibility of parole after 35 years in prison.

Simcox cleared the next hurdle last week, when Padilla agreed the defendant could personally cross-examine the two girls, who are now 7 and 8. The girls were 5 and 6 in 2013, when the alleged abuse took place.

State prosecutors argued this would be a clear violation of victims' rights, and took the issue to a three-judge panel in the Arizona Court of Appeals Monday. Prosecutors asked Judges Margaret H. Downie, Patricia K. Norris and Randall M. Howe to review the case and delay the imminent trial.

Their decision, issued the same day, delivered dual blows for prosecutors. The court would not order a stay, but would accept jurisdiction over the case, meaning the state cannot appeal to a higher court.

"Although the trial will likely proceed, with cross-examination of the witnesses at issue occurring before this court can address the special action petition on the merits, the court declines to dismiss the petition as moot," the statement reads.

"We're literally trying to determine what our options are, that's our position right now," said Jerry Cobb, a spokesman for the Maricopa County Attorney's Office.

Cobb said Simcox's pursuit should have presented a clear violation of Arizona's Victims' bill of rights. State law guarantees the accuser is to be "free from intimidation, harassment, or abuse throughout the criminal justice process."

Prosecutors argued there were other routes for cross-examination that would have been less traumatizing for the girls but still protected Simcox's right to question witnesses. His advisory counsel or the judge, they said, could read the questions instead.

Simcox disagreed, as he painstakingly explained in a 22-page, handwritten motion penned from Lower Buckeye Jail.

"A fundamental aspect of my best defense relies on my right to confront my accusers," he wrote. "The counsel clause of the Sixth Amendment implies the right of defendant to conduct his own defense with assistance at his trial."

Simcox said his advisory counsel should not be "thrust" into a potential claim of ineffective assistance.

"Pro se defendants," he continued, "must be allowed to control organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address court and jury at appropriate points in trial."

Cobb said prosecutors don't know of another Arizona case that presented the same set of circumstances: a sex-crime case with a child accuser and a defendant representing themselves.

Judges have ruled both ways in cases around the country—in favor and against defendants who tried to question their accusers, said Meg Garvin, executive director of the National Crime Victim Law Institute at Lewis and Clark College in Portland. The center has offered to assist state prosecutors in Simcox's case.

Garvin said defendants may attempt to conduct their own cross-examinations as a means to further intimidate or manipulate the alleged victims.

"It's an incredibly powerful moment to get to question someone else," she said.

One of the more poignant examples of this, Garvin noted, was in Seattle in November, 2010. A 21-year-old woman climbed to the roof of the 12-story King County Courthouse and threatened to jump—an alternative preferable to facing her alleged abuser's line of questioning in court.

The woman didn't jump and also didn't testify. But others did, and defendant Salvador Aleman Cruz was convicted.

Garvin said judges may be nervous about imposing limits on self-representation, and fear they're setting up an "appealable moment." But she maintains there are no "good reasons" to allow a defendant to take so much control over a potential victim.

"The court has discretion and has authority to limit what the defendant is doing," she said. "The fact that it is about to happen is just so harmful, both to the victims and to the process."