ARLINGTON, Virginia — Richard Cox once again derailed pretrial proceedings on Friday as a Virginia court tries to decide whether he can exercise the right to self-representation. Cox, who is a registered sex offender, is facing dozens of charges in Virginia’s 17th Judicial Circuit Court, including indecent exposure, and indecent liberties with a child.
Cox is on trial for charges stemming from entering female locker rooms in recreation centers and high school pools open to the public. Cox, a biological male, identifies as transgender and could enter these facilities because Arlington County policy allows people to use the bathroom of the gender they identify with, rather than biological sex.
Judge Daniel T. Lopez was supposed to address motions on the validity of Cox’s loitering charges, whether letters written by Cox are admissible as evidence, and whether Cox would be allowed to cross-examine witnesses.
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However, Lopez made no rulings on Friday because Cox claimed the Commonwealth did not provide the motions in time, so Cox could not give arguments. The courtroom erupted as the judge and lawyers tried to decide which charges Cox was self-representing, and who needed to receive the motions.
The Commonwealth is trying to convince the judge to either allow Cox to self-represent on all charges or have the public defender represent Cox on all the charges, rather than allow Cox to self-represent on only some of the charges.
“It’s become a confusion over who is representing who, on what,” Deputy Commonwealth Attorney Abhimanyu Mehta said. “It’s going to be a very, very long and complex jury trial, and we need to take every step we can even think of to ensure that it proceeds in a smooth and efficient manner.”
Mehta reminded the judge that Cox tried to delay a previous trial by requesting to self-represent. Cox was on trial for two counts of possession of child pornography in the second offense earlier in February.
Loitering or exposing for sexual gratification?
Michael Cash, Arlington County’s senior public defender, argued Cox gets access to facilities because Cox is homeless and that just because somebody takes an inordinate amount of time to do daily activities, such as showering, doesn’t mean it’s loitering.
“I don’t think I’m breaking any news when I say that a lot of sex offenders in the Commonwealth are homeless,” Cash said. “Homeless people need to be able to take advantage of places that are open to the public, such as shelters, library, parks and yes, showers and bathrooms, especially in the fall and winter months that we’re dealing with in this case.”
Cash told the judge that the loitering charge is discriminatory against homeless people and should be dropped.
“Homeless sex offenders are the exact kind of group that would be subject to this discriminatory enforcement,” Cash said. “Sex offenders are the kind of people that the public generally doesn’t want anywhere.”
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Prosecutors argued police found evidence on Cox’s phone highlighting children’s swim schedules and gymnastics classes, which they said showed Cox had intent to walk around naked in front of children. Witnesses they plan to bring to the stand will present evidence of Cox’s behaviors while in the lockers rooms.
“This is evidence we would like to bring to the jury and let the jury decide whether or not Cox is guilty of the loitering charges,” prosecutors said.
Letters admitting compulsions and guilt
Judge Lopez must also weigh whether letters Cox wrote to a judge in 1993 and 1995 will be admissible.
Cox was imprisoned in 1991 for exposing himself to children. While behind bars, Cox wrote to a judge that he gets sexual gratification from exposing himself to females in public, and had requested to be chemically castrated.
“While I’m jailed for just actively exposing myself, I don’t just underplay my actions. I think that what I did is shameful,” Cox wrote in the letter. “I only want to point out the fear and frustration that’s mine.”
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“Were I not so afraid of physical contact with people, I’m sure I would have no problem in growing a normal relationship with a girl my age,” Cox wrote. “I don’t want to be a prisoner here. I can’t control it, it’s not my fault.”
The defense argued the prosecution should not be allowed to show the jury these letters because Cox does not necessarily harbor the same intent from 30 years ago. Cash told Judge Lopez that by allowing these letters into evidence, the judge would basically be saying he doesn’t “buy in” to the prison rehabilitation programs designed to help people “treat their worst impulses.”
“Once a pervert, always a pervert,” Cash said. “That’s a particularly cynical argument from the Commonwealth.”
The judge had not allowed these letters to be admissible into evidence for the child pornography trial earlier in February.
The judge outlined that the defendant has already admitted during pretrial motions hearings that “I’m just looking for help” and “I just want the jury to know how bad I feel.” The judge said two dynamics can exist at once: Cox can claim to be transgender, and Cox can receive sexual gratification by exposing himself in front of women.
Can Cox cross-examine witnesses?
Prosecutors are fighting to prevent Cox from being able to cross-examine witnesses. There will be witnesses as young as 17 years old, as well as mothers of children who were subjected to Cox’s behavior in the bathrooms.
Mehta argued witnesses may decline to call police, or work with prosecution in the future, if they are worried about getting cross-examined by the suspect during a trial, in front of a jury and the media.
“All we’re saying is that [the questions] should be written out in advance and only be read by the qualified attorney,” Mehta said, arguing against the idea that Cox should be allowed to question any witnesses himself. “It happens all the time when two protesters or two defense attorneys, they’ll write questions, ask this next, or hand up notes, or we’ll check in with each other and make sure we cover everything. They certainly can do the same.”
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The judge will allow Cox to give arguments on March 6. When Cox tried to object and request more time, the judge denied.
The trial will begin on April 10, and is expected to last 10 days with over 25 witnesses.
