Former Minuteman leader’s child molestation case to proceed

Simcox allowed to cross examine alleged child victims

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chris simcoxPHOENIX – Chris Simcox (r), former leader of the Minuteman Civil Defense Corps, a volunteer group dedicated to securing the border from illegal crossings, was indicted in 2013 and charged with three counts of sexual conduct with a minor, two counts of child molestation, each a class 2 felony, and one count of furnishing obscene material to minors, a class 4 felony.

As the case was proceeding, the state appealed Superior Court Judge Jose Padilla’s ruling that Simcox, who is representing himself, be allowed to cross examine the child witnesses.

Last week, the court of appeals denied the state’s requested relief and stated, “A trial court may exercise its discretion to restrict a self-represented defendant from personally cross-examining a child witness without violating a defendant’s constitutional rights to confrontation and self representation. It can do so, however, only after considering evidence and making individualized findings that such a restriction is necessary to protect the witnesses from trauma.”

The court found the state not only failed to present such evidence, it abstained when provided an opportunity to do so, giving the trial court no basis to restrict Simcox from cross-examining the child witnesses.

The alleged victims in this case are Simcox’s 8-year-old daughter and an 8-year old friend of his daughter.

And, while the state plans to call them both to testify about the incidents that form the basis of the charges, it also plans to call as a witness a 7-year-old friend of Simcox’s to testify about an alleged incident she had with Simcox.

The state is seeking to admit her testimony to show Simcox has an “aberrant sexual propensity to commit the charged offenses.”

The court granted Simcox’s request to represent himself but also appointed advisory counsel to assist him.

The state requested Simcox’s advisory counsel be the one to conduct the cross-examinations of the child witnesses rather than Simcox.

Simcox argued the restriction would interfere with his right of self-representation.

The appeals panel found nothing in the record indicating the trial court erred in its ruling to allow Simcox to personally cross-examine the children and stated, “A criminal defendant has the constitutional right to confront the witnesses against him face-to-face, and this right is implemented primarily through cross examination.”

However, the panel also pointed out the right of a self-represented defendant to personally conduct cross examination is not necessarily absolute.

And, while the face-to-face component is not easily dispensed with, the court stated denying a face-to-face confrontation will not violate the Confrontation Clause when it is necessary to further an important public policy and the reliability of the testimony is assured.

The court also pointed out the U.S. Supreme Court recognized a state’s interest in protecting the physical and psychological well-being of child abuse victims is sufficiently important to justify restrictions on cross-examination if the state makes an adequate showing of necessity.

The appeals panel noted, in denying the state’s request, the trial court recognized and followed the requirements of the Confrontation Clause and the Supreme Court precedent interpreting it.

The trial court asked the state to present its evidence but the state declined to do so.

And, without evidence, the panel agreed the trial court was constrained to deny the state’s request.

The U.S. Supreme Court found a defendant’s right to cross-examine child witnesses may not be restricted unless the trial court makes case-specific findings that the restriction is necessary to protect them from the trauma caused by cross examination.

The appeals panel added, “This does not mean that victims cannot be protected. If the state believes that a defendant’s personal cross-examination of a witness is intimidating or harassing the witness, it may always ask the court to control the examination.”

The panel also said if the state believes cross-examination of a witness would cause particular trauma to the witness, it can present evidence that the trauma will occur and ask the court to make case-specific findings that will justify restricting the defendant from personally cross-examining the witness.

In conclusion, the panel said the trial court invited the state to present evidence of trauma but the state declined the opportunity.

Without evidence, the trial court had no constitutional basis to restrict Simcox from cross-examining the witnesses.

The case is currently scheduled for trial at 10:30 a.m. on July 6, 2015.

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