By Myrna Trauntvein
Times-News Correspondent
Fourth District Judge Guy Burningham said he is certain
polygamist Tom Green committed child rape.
Burningham said he will rule in writing following New
Year's whether prosecutors can take Green, 53, to trial on
the charge under the state's statute of limitations.
He said his decision represented a "difficult
task."
"Under the law, a rape occurred, it did," said
Burningham. "Those facts, no matter how old they get,
haven't been dismissed."
Burningham said he needed to study legal arguments and
will submit his decision after the new year.
"No matter how I rule, it's probably going to be
appealed."
The judge's decision will either open the door for
prosecutors to pursue the felony charge or will slam the
door shut on the case.
Juab County Attorney David Leavitt successfully
prosecuted Green in May on four counts of bigamy and one
count of criminal nonsupport and Green is now serving a
five-year sentence in state prison.
In addition to those charges, however, Leavitt also
accuses Green of fathering a child with the then 13-year-old
Linda Kunz back in 1986.
"If we look at the evidence on the birth certificate
of her first child, it is obvious that Linda Kunz was
13-years old at the time," said Leavitt.
Kunz and Green have had several other children since
that time and the couple remain together. Green also
considers himself "spiritually married" to four other
women.
According to Utah's statute of limitations, a crime
must be prosecuted within four years of filing a report with
a law enforcement agency. The legal argument which is being
considered is whether Green's sexual activity with Kunz was
ever reported to law enforcement.
Leavitt must prove that police did not know Green had
sexual relations with the teenager 14 years ago.
"The burden of proof is upon the state to show beyond
a doubt that no report was ever made," said Green's
attorney, John Bucher. "Although several dozen law
enforcement officers have testified that they do not recall
a report, it does not prove that there was not one."
During arguments Monday afternoon in a seven-day
hearing that has spanned more than a year, the
co-prosecutor, Brigham Young University law professor Monte
Stewart, argued that Green considers himself exempt from the
law because in polygamist culture "impregnating a
13-year-old girl" is acceptable. "This mindset makes a
mockery of law."
Outside court, Leavitt expressed surprise at the
judge's comments. "That's the first I've ever seen a judge
indicate that a defendant is guilty before ever going to
trial," he said.
Leavitt said justice must be served to show those in
polygamist circles that sexual activity with girls 13 years
old or younger is not acceptable. "This is a case of
polygamist girls having equal protection under the law as
non-polygamist girls."
In recently filed court documents, Juab County
Attorney David Leavitt accuses Tom Green and his family of
lying to keep Green from standing trial for rape of a
child.
"Members of the Green family gave testimony about
purported instances of reporting the offense to law
enforcement, and in every instance the involved law
enforcement officers refuted that testimony," wrote Leavitt
in a 66-page brief filed in 4th District Court.
In Leavitt's brief, the prosecution accuses Green,
his five wives and dozens of children of scripting an
elaborate lie to prevent him from being charged with child
rape.
Green claims his relationship with Linda Kunz, who is
still married to Green, was brought to the attention of
state and county officials several times over the past 14
years and in each time law enforcement officers chose not to
pursue charges.
On several occasions, Bucher said, caseworkers from
Utah's Division of Child and Family Services visited Green's
home to investigate allegations of child abuse. Green's
wives testified that Kunz's age was disclosed to the
caseworkers.
Records show no law enforcement agency ever reported
such facts.
"The Green family testimony cannot be accepted as
true," he wrote. "To escape the consequences of this certain
criminal act, Green has both perjured himself and suborned
the perjury of family members."
In his reply to Leavitt's accusations, Bucher claims
there is ample evidence to show that Green's relationship
with Kunz was reported and, therefore, the four-year statute
of limitations has expired.
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