By Myrna Traintvein
Times-News Correspondent
Fourth District Judge Donald Eyre adjourned a hearing
until May 10 after he heard arguments Friday on whether Utah
should prosecute polygamist Tom Green for child rape and
whether a local free-lance writer should be compelled to
testify.
Late Friday evening, Eyre continued the hearing until
May 10 to allow the defense to make its case.
Eyre will issue a ruling within 10 days on whether
Carolyn Campbell, the free-lance writer, must testify.
Eyre issued no immediate rulings in the case in which
Green is being charged with one count of child rape, a
first-degree felony, which could mean life in prison if
convicted.
Green is already serving a five-year sentence at the
Utah State Prison for charges of bigamy and criminal
nonsupport for co-habitating with his five wives and 32
children in Juab County's West Desert.
At issue in the child rape case is whether Green and
Kunz conceived their first child within Utah's jurisdiction.
David Leavitt, Juab County Attorney charges Green had sexual
contact with Linda Kunz-Green while in Utah.
Green contends that Melvin Green, now 15, was
conceived outside the United States.
But the question may be a moot point.
Leavitt argued that under Utah's law, Green still
could be prosecuted for child rape even if the sexual act
occurred in Mexico.
"According to Utah law, if an act was deemed illegal
in one area as well as in Utah, then the state can
prosecute," said special prosecutor, BYU law professor Monte
Stewart.
Stacy Johnson, an Orem attorney who has practiced law
in Utah and in Mexico, testified that Green violated
Mexico's statutory rape laws by having sex with a
13-year-old girl.
However, Green's attorney John Bucher questioned if
Mexican law applied to an act involving two U.S.
citizens.
Bucher said the act occurred outside Utah's
jurisdiction in Mexico.
An income tax return, entered as evidence, indicated
that Green filed as a full-time Utah resident.
"He was a vagabond, a traveling salesman and traveled
with his family from Idaho to Arizona and Nevada selling
magazine subscriptions during 1985 and 1986," said
Bucher.
Green and his wife took the witness stand Friday to
say they had been living in Arizona and conceived the child
during a vacation in Mexico.
During questioning about his whereabouts when Green
had sexual intercourse with his 13-year-old bride, Green
claimed his "spiritual" marriage and consecration took place
in Baja, Mexico, in 1986 while they were on their
honeymoon.
Leavitt called to attention inconsistencies with
Green's family, including who was married first,
prevaricating on ages in articles and on television to cover
up underage marriage and even using aliases with
landlords.
"Why anyone should believe Tom Green?" he asked.
Green accused Leavitt of twisting his words against
him.
Nevertheless, Green acknowledged he has used aliases
to rent apartments and lied on a court document when he
divorced his fifth wife.
Leavitt subpoenaed Campbell in an attempt to force her
to testify about a confidential interview she had with
Green's family in 1985.
Leavitt said proof that Green was in Utah in January
through February of 1985, the time in which the prosecution
believes Kunz conceived, lies in the testimony of
Campbell.
Assistant Attorney General Monte Stewart told the
judge that Campbell, who interviewed the Greens more than 15
years ago, should be forced to testify about what she
learned from the family.
Campbell said she came prepared to go to jail rather
than disclose the information. She said she would rather be
found in contempt of court than to discuss an interview she
claims was done in confidence.
Donald Berman, lawyer for Campbell, argued that a
privilege--similar to those enjoyed by lawyers and
doctors--exists for journalists.
Judge Donald Eyre expressed doubt that the law
actually protects reporters, pointing out there is no case
law in Utah showing that kind of protection. In fact, Eyre
said the U.S. Supreme Court has ruled that there is no
reporter privilege.
Berman argued that seven of the 11 federal circuit
courts have recognized a privilege that protects
reporters.
Leavitt said Campbell had waived any privilege by
speaking about the Greens to other media, at the Sunstone
Symposium last fall and even to an investigator with the
Utah Attorney General's Office.
Berman said Campbell has never divulged confidential
information.
Eyre said he would take the issue under
advisement.
Stewart, used a picture of a wedding cake as proof
that Green had married Kunz-Green before January 1986. A
photo that ran with Campbell's story in 1986 shows a picture
of a wedding cake for Beagley-Green's wedding shows a doll
of a groom along with three brides: one for Beth Cook, a
former Green wife, one for Shirley Beagley-Green and one for
Linda Kunz-Green.
Helen Rodgers, the Salt Lake City midwife who
delivered Melvin, testified she delivered all but one of
Linda Kunz-Green's babies and kept extensive records that
included medical data and the address of the mother at the
time of each birth.
Rodgers told Leavitt that she could no longer produce
the file since it had recently disappeared.
"Those records have now mysteriously vanished?" Juab
County Attorney David Leavitt asked Rodgers.
"I have suspected that some documents have been lifted
from the other side," she said.
"When you say the other side, what do you mean?"
Leavitt asked.
"The spiritual world," Rodgers said. "I did have a
dream once where a person came and lifted the file."
Rodgers added that during a blessing, it was revealed
to her that she would be visited by spirits. "You will work
with people on both sides of the veil as one."
Rodgers did state that in May 2001, just before Tom
Green stood trial for bigamy and criminal nonsupport, Linda
Kunz-Green came to her office to see her about prenatal
care. Rodgers admitted that she may have left Kunz-Green
alone with the file but maintained that it was spirits that
took the report to the other side.
Defense attorney John Bucher introduced a letter from
Green to Linda's father, John Kunz, discussing the couple's
plan to get married. The letter was postmarked in Arizona in
January 1986.
Leavitt handed a magnifying glass to John Kunz. "Does
the six on the end of 1986 appear darker than the rest of
the numbers?"
"Yes, but so does the 'm' on the end of 'pm,'" Kunz
said, noting the time of the postmark.
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