This story was written for Arizona Sonora News Service and the Tombstone Epitaph on May 4, 2016, prior to Simcox’s trial
Chris Simcox currently sits in Lower Buckeye Jail in Maricopa County, waiting for his trial to begin Monday in a case that could once again have the former leader of a border vigilante movement make a national impact.
Simcox, 55, who is representing himself, faces charges that he molested two young girls, who were 5 and 6 years old at the time. If convicted, the former co-founder of the Minuteman Project could spend the rest of his life in prison.
With the help of others, Simcox started the Minuteman movement in Tombstone in the mid-2000s, which had civilians patrol the U.S.-Mexico border and roiled the national debate around illegal immigration. Now, with his criminal trial, Simcox may settle a dispute within the Constitution itself — whether he wants to or not.
The U.S. Supreme Court could soon hear Simcox’s argument to personally cross-examine the young girls who accused him, even though he has since dropped his pursuit to do so. Simcox put his 6th Amendment right to confront his accuser up against his right to self-representation when he asked to personally cross-examine the girls on the stand in an appeals process that worked its way up to the nation’s highest court.
Rise and fall of the Minuteman movement
Jim Gilchrist first heard Simcox on a radio program in Los Angeles, speaking about his desire to secure the southern border, which he said the federal government was failing to do. Gilchrist, who lives in Orange County, California, was intrigued by what Simcox had to say.
“I called him up and told him I had an idea that might work well,” Gilchrist said.
Simcox, a former California schoolteacher, helped create a neighborhood watch group in Tombstone in 2002 to monitor the border for people crossing illegally. He had also purchased the Tombstone Tumbleweed newspaper, in which he expounded on his anti-illegal immigration views.
Simcox declined to be interviewed for this story.
Gilchrist and Simcox together co-founded the Minuteman Project in 2004, and they developed a plan to draw national attention to the “invasion” at the southern border, Gilchrist said. They would recruit volunteers to come to the border and patrol the desert for 30 days, where they would watch for people crossing the border illegally — a plan designed to attract media attention.
Realistically, Gilchrist said, he expected “about three people to show up.” Instead, hundreds responded and Gilchrist knew he had a hold of something big when he got a call from Fox News to be interviewed live.
“I have to credit the media with sending out the message and creating a frenzy,” Gilchrist said. “I accomplished my mission 1,000-fold. It became a national debate.”
With ham radios and walkie-talkies, about 1,250 Minuteman volunteers spread across three dozen camps on the Arizona-Mexico border in April 2005, watching for illegal crossers and reporting activity to the Border Patrol. The patrols prompted calls to action by politicians from across the country.
Gilchrist and Simcox, however, parted ways not too long afterward. The distance between the two — Gilchrist in California and Simcox in Tombstone — became too much and they differed in how the movement should continue, Gilchrist said.
“He had his own personality and his own vision of the ways things should be,” Gilchrist said. “I just let him live that out.”
Al Garza also became involved with the Minuteman Project after seeing Simcox being interviewed by the media. The Whetstone retiree joined with Simcox’s group and rose to become vice president of the Minuteman Civil Defense Corps, which Simcox formed as the Minuteman movement split.
“I had a lot of respect for Chris,” Garza said. “He listened. He was very professional.”
Infighting continued among the movement’s leaders, with some splintering off to form their own groups under the Minuteman moniker. Simcox left the Minuteman Civil Defense Corps and Tombstone to move to the Phoenix area in 2009. The group formally dissolved soon afterward.
Border militia groups across the country are on the wane, too. The number of organizations described by the Southern Poverty Law Center as “nativist extremist groups,” which include border vigilante groups, have fallen from their peak of 319 in 2010 to 17 this year.
Juanita Molina, executive director of Border Action Network, an immigrant rights group, said the reason behind this decline is likely the instability of their leadership, as with Simcox.
“We’ve seen a rapid deterioration of that movement because the leaders, the people who have made it to the top, have had problems,” Molina said.
Other leaders of border militia groups have met similar fates to Simcox. Shawna Forde, the leader of Minutemen American Defense, a splinter group, was convicted of killing two people, including a 9-year-old girl, in Arivaca in 2009 and sentenced to death. J.T. Ready, who helped found the Minuteman Civil Defense Corps and another border vigilante group, killed four of his family members before killing himself in Gilbert in 2012.
Garza expressed a sense of resignation about the current state of the movement, but added that it had been effective in amplifying the debate about illegal immigration and border security. “Had it not been for Chris or the Minutemen, we wouldn’t be talking about this issue now,” he said.
Possible Supreme Court hearing
In 2013, Phoenix police arrested Simcox on charges that he molested two young girls the previous year. He’s been in jail ever since.
Facing a lifetime behind bars if convicted, Simcox turned down a plea deal from prosecutors and opted to represent himself.
Citing his 6th Amendment right to be able to confront his accuser, Simcox argued last year to Maricopa County Superior Court Judge Jose Padilla that he should be able to cross-examine the girls. Padilla ruled that he could do so.
Prosecutors disagreed with this decision by the court, said Jerry Cobb, a spokesman for the Maricopa County Attorney’s Office.
“Under Arizona’s Constitution, victims have the right to be treated with fairness, dignity and respect throughout the criminal justice process and to be free from harassment,” Cobb said. This case “raises the prospect that he may be able to torment or harass his victims on the stand.”
Other options exist for these kinds of situations. Advisory counsel for the defendant could do the cross-examination, the questioning could be done through closed-circuit TV or questions could be submitted to the judge to be answered, Cobb said.
The decision by Padilla has worked its way through the appeals process, putting the trial, which was scheduled to begin last year, in a holding pattern.
Jack Wilenchik, a Phoenix attorney representing the mother of one of the girls, filed a petition in February for the U.S. Supreme Court to take up the case.
In April, the Supreme Court requested a response from Simcox, which indicates that the Court is interested in hearing the case, Wilenchik said.
While letting someone accused of molesting children question those children in court may seem beyond the pale, the legal argument for doing so may hold merit in the courts.
“It’s not a far-fetched argument,” said Michael O’Shea, a professor at Oklahoma City University School of Law, who studies the Confrontation Clause. “If you have the right to personally represent yourself and you have the right to cross-examine witnesses against you, then there is a logic to being able to personally cross-examine witnesses against you.”
The Supreme Court has found that the right for a defendant to be able to confront his accusers, however, is not absolute, O’Shea said. He points to Maryland v. Craig, a 5-4 Supreme Court ruling that found that “in certain narrow circumstances” the right to confrontation could be outweighed by the interests of the witnesses who testify.
Simcox halted his fight to cross-examine the girls in March. He stood up and told the court that “to save everyone some trouble and to get this thing resolved, I will accede to their wishes” in waiving his right, according to a transcript of the March 21 hearing.
While Simcox dropped his appeal to personally question the girls, the Supreme Court could still take the case. It does mean that mootness becomes an issue, Wilenchik said.
Wilenchik is continuing to pursue a ruling from the Court because Simcox could still change his mind about the issue and a re-trial, where Simcox’s initial argument could be brought up again, is always a possibility.
“It’s also an issue that the Court hasn’t really ruled on,” Wilenchik said about these cross-examinations, “and it’s a pretty basic issue: Does a criminal defendant have a constitutional right to personally question their own victims?”
Several national organizations have signed on in support of Wilenchik’s argument, including National District Attorneys Association and the Survivors Network for those Abused by Priests, or SNAP.
Last year, in a jailhouse interview with the Arizona Republic, Simcox didn’t express optimism about his prospects at trial.
“I have a better chance of getting struck by lightning and winning the lottery in the same day,” he told the newspaper of his chances at trial, “unfortunately, because of the social stigma that goes with it.”
When Simcox told the Court he no longer wanted to cross-examine the girls, he didn’t give a reason for doing so.
“Maybe he thought he wasn’t ultimately going to prevail,” Cobb said. “But, obviously, the only person who knows that answer is Mr. Simcox.”