Chris Simcox—Tombstone’s former front man for border vigilantism—has a new campaign that he hopes will keep him out of prison.
Representing himself against charges he sexually molested two kindergarten-age girls, his latest exploits have triggered an Appeals Court showdown between his beliefs that he can question the girls in court and those who believe molestation victims must be protected from harm by the courts.
In 2013, Simcox, now 54, was charged with molesting two girls—one 5 and the other 6.
The ex-founder of the Minutemen Civil Defense Corps, the vigilante border protection group that rose to national prominence in 2005, has been awaiting trial since.
Now, after some last minute scrambling by the prosecution and a pro bono lawyer representing one of the victims, the state Supreme Court has held the case until April 29 when the state Court of Appeals will decide whether Simcox has the right to directly cross-examine his alleged victims.
“He has the 6th Amendment right to confront the accusers against him,” said Erica Hashimoto, a professor of law at the University of Georgia Law School and an expert on self-representation. “Even if he can’t represent himself, he still has a right to confront the witnesses and to be there.”
Despite his right to be present during the cross examination, Simcox’s decision to exercise his right to self-representation has presented an intellectual and moral dilemma for the court as jurists determine between the rights of the defendant and the rights of the victim.
Simcox was a former kindergarten teacher in California who moved to Tombstone and helped start a movement. After purchasing the Tombstone Tumbleweed, a local paper, he rose to national prominence as a cofounder of the Minuteman Project.
The group attracted 1,250 volunteers over the course of 30 days, with representatives coming from every state in the country, according to Jim Gilchrist, the cofounder.
But Gilchrist found Simcox tough to work with and distant and found that he did not take criticism well.
“It was his way or the highway,” Gilchrist said. “There was a personality disorder there that I did not think was bad as it was.”
Now, Simcox wants his way again, and if he loses he could face life in prison.
“He has a right, obviously to question the witnesses,” Jerry Cobb, the spokesman for Maricopa County Attorney’s Office, said. “But the victims have rights too.”
The state is asking for the Court of Appeals to devise a solution that will protect both the defendant and victim’s rights.
“We not only have to look out for the rights of the state, the people on whose behalf we’re bringing this case,” Cobb said. “We also have to mindful of the victim’s rights and we don’t actually formally represent the victim. And we have to be respectful and mindful of the rights of the defendant. No one else in the process has those three responsibilities.”
Cobb referenced situations where an advisory council or the judge asked questions in lieu of the defendant, but for Hashimoto, these situations are problematic.
“The court could certainly ask him whether he’d be willing to let the lawyer ask the question for him,” Hashimoto said. “But if he’s not willing to, I think the United States Supreme Court law on this is pretty clear. He gets the right to ask the questions.”
For Hashimoto, if the right to self-representation is infringed, it can create a dangerous legal precedent.
“If you require a defendant to be represented by a lawyer, he or she loses control of the defense of the case,” she said. “A lot of the decisions that get made along the way, that the lawyer gets to make.”
While the defendant gets to make the decision to represent himself in trial, the victims are subject to the proceedings of the court. With children, it becomes even more complicated, because the high stress environment of the courtroom can make it hard for them to communicate effectively, according to Jodi Quas, a professor of Psychology, Social Behavior and Nursing Sciences at the University of California at Irvine, whose research focuses on children involvement in the legal system.
“They tend to have a more difficult time expressing their ideas, they tend to be more easily manipulated by others under high stress,” Quas said. “So it’s a more difficult situation to put them in even when they’re describing a completely true event.”
Having the defendant in the room exacerbates that stress.
“They oftentimes are most afraid of and stressed about facing a defendant, of seeing the defendant,” Quas said. “So all of these factors are going to play into how the children can even answer questions when the defendant is in the room, much less when he’s posing questions to them.”
But when it comes to having to face questions from their alleged attacker, there isn’t much data because the situation is so rare.
“We don’t know what the effects are because witnesses usually are not cross examined by an alleged perpetrator,” Quas said. “The alleged perpetrator oftentimes is in the room when they’re cross-examined, but this is a particularly unusual situation.”
In the Simcox case, the testimony of the girls is essential to the prosecution.
“They are the case,” Cobb said. “We haven’t listed any other witnesses or corroborating witnesses or anything to this abuse. It really comes down to these kids.”
In the past, the United States Supreme Court has used alternative means to allow children to testify if the stress of the courtroom is too much for them. The most common is to use a closed circuit television testimony.
“What we don’t want to do is cause secondary victimization,” Quas said. “But you really have to keep the legal matters separate from the victimization of children and that’s what makes this hard.”
Hashimoto said that a vulnerable victim shouldn’t be able to take away the rights of a defendant to represent himself, because that’s out of his control.
“He’s been accused of molesting these victims, he hasn’t been proven guilty yet.” Hasimoto said. “So saying that you’re going to take away a core constitutional right just because somebody else might be harmed, I think it’s really problematic.”
Regardless of the decision from the Court of Appeals, the case has the potential to stretch to the Arizona Supreme Court or even the U.S. Supreme Court, where there’s no precedent about defendants cross-examining their alleged child victims.
There’s one thing for certain about Simcox from the way he’s handled this case.
“He’s an intelligent man,” Cobb said.
Dan Desrochers is a reporter for Arizona Sonora News, a service from the School of Journalism with the University of Arizona. Contact him at ddesrochers@email.arizona.edu.