By Myrna Trauntvein
Times-News Correspondent
It will soon be decided--is polygamist Tom Green going
to face trial in charges of child rape or not?
Fourth District Judge Donald Eyre said Tuesday, June
4, that he would render his decision on Monday, June 17,
after weighing prosecution and defense arguments over
whether Utah has jurisdiction to try Green for child rape.
The ruling will be issued one week before Green is set to go
to trial.
Judge Eyre requested final arguments be submitted in
writing.
Juab County Attorney David Leavitt and defense
attorney John Bucher made their courtroom arguments before
Judge Eyre on Tuesday.
During the course of proceedings, both Green and Linda
Kunz Green took the witness stand.
Juab County prosecutor David Leavitt said his biggest
piece of evidence for the child rape charge is Melvin Green
and his birth certificate, which puts his mother at age 13.
Linda and Tom Green went to Mexico in January 1986 and
Melvin Green was born the following October.
Outside the courtroom, Leavitt said that Green had not
hindered the case by his testimony. "Tom Green is his own
worst witness," said Leavitt.
He made the statement, because on the stand, Green
testified that he married Kunz-Green in the state of Baja,
Mexico, in 1986. For this reason, Tom Green asserts he was
outside Utah's jurisdiction.
Bucher said it was in Mexico that the couple
honeymooned and it was there that Melvin Green was
conceived.
Leavitt and Deputy Prosecutor Monte Stewart, a Brigham
Young University law professor, contend that Green had
sexual relations with Linda Green in Utah. There is legal
precedent for Utah to prosecute a resident for a crime
committed in another state if part of the crime happened in
Utah, said Stewart.
However, Stewart said, even if Green's story is true,
he can still be prosecuted.
"The Constitution presents no obstacle to Utah
exercising jurisdiction over a man who took a 13-year-old
Utah girl from Utah to Mexico, married her and there
impregnated her, and returned her to Utah, where she gave
birth to a child," Stewart said.
Green is already serving a 1-5 year sentence in prison
for bigamy and criminal nonsupport. If convicted of child
rape, Tom Green could spend the rest of his life in
prison.
In court the defense called one of its few witnesses
to Tom Green's marriage to his 13-year-old bride.
DeWayne Hafen of Baja, California, testified that in
January 1986 he attended the spiritual wedding in Mexico of
Tom Green and Linda Kunz and remembered it was January 1986
because that was the rainy season in Baja, California.
On the witness stand, Hafen claimed he attended the
wedding at the Mexican polygamist enclave under protest even
though he also follows the principles of "Mormon
fundamentalism," including polygamy.
"I disagreed with what Tom was doing. I thought she
was too young. I feel young women must be allowed to grow up
and make choices," Hafen said. "I told him this was the sort
of thing that gives polygamists a black eye."
Leavitt argued that even though Tom Green was in
Mexico at the time, under Utah law the state has
jurisdiction over any Utah resident who commits an act in
another jurisdiction that is considered a crime in both Utah
and that jurisdiction.
"If anyone was using coercion, it was me," Linda Green
testified, reaffirming her testimony that she was the one
who pursued the then 37-year-old Green, a man 24 years her
senior.
When she took the stand, Linda Kunz Green said her
mother consented to the arrangement but her father
threatened to call the police if she married Green before
she was old enough.
Tom Green testified that, during 1986, he had no plans
to return to Utah and denies being a Utah resident that
year. He said he was a traveling salesman who took his
family to Arizona, Nevada, Idaho, Colorado and Wyoming. The
family did return to Utah to acquire prenatal care for Kunz
Green from the family's midwife, and stayed.
Stewart also said that Green filed a
full-year-resident income tax return in 1986, a year he
purportedly lived outside the state most of the time.
Green explained that the return was filed in 1988, and
his tax preparer told him to do it that way since he
couldn't remember all the places he had lived.
Bucher presented an envelope mailed to an alias Green
used in Casper, Wyo., in January 1986 to demonstrate that
Green did not have a Utah residence at that time.
However, Stewart said the envelope also had a Utah
address under the address label which was visible when it
was held up to the light indicating the envelope was
originally sent to Utah.
"You said you made a phone call to the National Park
Service and said mail it to Casper, Wyoming. Why is it they
addressed the envelope to a place in Utah?" Stewart
asked.
Green said the Utah address was a mail forwarding
location, but "I recall giving them the Wyoming
address."
Green said he used an alias to protect himself from
members of the LeBaron polygamist group who he believed were
planning to kill him.
Stewart suggested that the alias was simply an effort
on Green's part to hide his illegal acts.
In another development, the victim's rights suit by
Linda Kunz against Leavitt is on hold but may end up in
federal court, said Grant Morrison, Kunz's attorney.
The suit seeks to block Leavitt from prosecuting Tom
Green for marrying Kunz when she was 13.
In the suit, Kunz contends she is not a victim and
that Leavitt has no right to classify her as such.
"If victims' rights mean anything, it does not mean
the state declares you a victim," Morrison said.
Kunz-Green said Leavitt filed the child-rape charges
without consent or cooperation. Leavitt said he discovered
the alleged rape while preparing to try Green on bigamy and
criminal nonsupport charges.
Morrison said Kunz-Green should be the one who
determines if she is a victim of a crime, not a
prosecutor.
Kunz has been one of Green's wives for the past 15
years and is the mother of six of his 30 children.
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