E-mail:			Polygamy on Trial Prosecutor David Leavitt V The Green Clan

August 2007 Latest - Tom Green released on parole and living "nearby" his "former wives". Meanwhile, Warren Jeffs faces prosecution, and the 10th Circuit Court of Appeals has turned down a civil case that challenged the bigamy law. But the ground for turning it down was that the plaintiffs lacked standing to challenge the law on the basis they were unfairly in fear of prosecution - as the court held there was insufficient risk of them being prosecuted for bigamy!

Meanwhile in Canada, Attorney General of British Columbia Wally Oppal agonises how to prosecute those pesky polygamists at Bountiful, when his own prosecutors tell him that the bigamy law won't survive a Charter of Rights and Liberties challenge, and his hired-in advisor says the best Oppal can do is check the law with the court, as even if it could survive there wouldn't be enough evidence to convict. 

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OK - this is soooo 5 years ago - but for those of you interested in the history from, er, 6 years ago, read on...

Green sentenced to 5 years imprisonment for cohabitation

Friday 24th August 2001 saw three hours of legal argument followed by the sentencing of Tom Green. Judge Guy Burningham sentenced Green to 5 years imprisonment five times over for 4 offences of bigamy and one of "criminal non-support" related to family claims for welfare payments. The judge also ordered Green to pay $78,000 to the state, in recompense for these payments - which might be difficult given the number of wives and children he will now have to sustain from prison. Because the sentences will run concurrently Green could be separated from his family for five years, for cohabiting with more than one woman at once, which is not an offence in many states, and which is perfectly legal behaviour across the world, including many Western countries.

Prosecutor David Leavitt had asked for a 10-year sentence, but appeared happy with the result. The story is not yet over as there is every likelihood of appeal, and prosecutors are pursuing a case of statutory rape against Green, relating to his relationship with one of his current wives 15 years ago, when she was a few months below Utah's legal marriage age. The woman is still married to Green, and is pregnant with their seventh child, but he could still face 6-years-to-life if the case goes to trial. After the bigamy sentence was passed she complained that Green "wasn't allowed to talk to us or say good-bye to us. He just blew us a kiss goodbye." A ruling is awaited as to whether the planned trial would violate the Statute of Limitations.

Green is expected to appeal his conviction and the amount of restitution Judge Burningham ordered.There will be a hearing on 4 September on a motion to release Green to allow him to work on the appeal. Before he sentenced Green, Judge Burningham said "It is specific in the Utah Constitution that polygamous acts or polygamous marriage was forbidden when it became a state". He ruled that religious belief is protected in U.S. and Utah constitutions, but that religious practice that is deemed a threat to society can be regulated under law. This is a highly contentious point likely to feature in any future appeal.   

It couldn't happen in Britain

Americans fought a war of independence from Britain to achieve their freedom, but research at a British University has shown that if Green had cohabited with women in the UK he could never have been prosecuted for bigamy. The research, recently published in a new book, shows how the British law has become increasingly tolerant of polygamy, and how incorporation of Human Rights laws may give polygamists legal recognition for their relationships. Order Today Direct from the Publisher Or Click here to Order This Book From Amazon Today! Or order from Amazon in the United Kingdom Or order from Barnes and Noble

Background

2001 has seen the revival of prosecutions of polygamists in Utah. Ever since the Short Creek raid in the 1950s, where images of young children being pulled from their mothers' arms did nothing to win popular opinion over to the prosecutor's side, there has been a stand-off between the many thousands of polygamists who live there and the state whose law condemns them as criminals.

This stand-off worked on the basis that polygamists kept quiet about their lifestyle in order to avoid prosecution, and the state didn't try to too hard to find them in order to avoid the embarassment.

But then the state Governor, Mike Leavitt, got into political hot water by making statements that questioned whether anti-polygamy laws were constitutional. After a rough ride with feminist groups, the Governor "clarified" his comments, effectively removing his support for polygamists, and the state persecution of polygamists took a new twist.

Soon, however, the Governor's brother, David Leavitt, who had the Governor's old job as Juab County Prosecutor, rode to the rescue by prosecuting one of the polygamists in his area.

Tom Green wasn't hard to find. 5 wives and 25 children are difficult to hide at the best of times, but when you have a tendency to take them around the nations talk shows, you are bound to attract some attention.

And so David Leavitt took Tom Green to trial, providing the required pre-Olympic show trial, and making Utah and its laws look several centuries behind the 21st Century they were called to administer.

Here are some of the issues that arose during this process:-

• The Prosecution decided not to prosecute the wives (who legally were just as guilty), avoiding unpleasant publicity by suggesting that these women were victims - but oddly, none of the victims would make a complaint about the "offender". This unequal prosecution of a male polygamist, but not his wives, calls into question whether the law violates the US constitution, which is supposed to guarantee all citizens "equal protection".
• Amazingly the first polygamist to be prosecuted for bigamy in 40 years was also charged with a sex offence on the basis that he had married one of his wives a few months too early - a wife who is still with him 15 years later.
• They also charged him with criminal non-support of his children on the basis that the state viewed him as having the responsibilities of a husband even though it would not grant him the privileges of being a husband.
• The polygamist they choose was married to wives who were sisters, or mother and daughter - thereby ensuring they had picked the polygamist least likely to be supported by religious communities.
• Until recently Utah law had allowed girls to be married at the age of 14.
• Many prosecutors and attorneys believe the law is unconstitutional because of the inconsistent and vague use of the term "cohabitant" in the state code book.
• The United States, with a long established Bill of Rights to protect its citizens is in the odd position of persecuting polygamists like no other Western country. Only in certain states in the US is it illegal to "cohabit". Most Western countries make do with a bigamy law which stops polygamists from having legal recognition for their relationships, but only in the US is this taken further, threatening people with imprisonment for what would be perfectly legal behaviour in any other society.
• The court ruled that Green stayed married to a woman even though he had legally divorced her.
• Prosecutors argued that a refusal to do otherwise would give the "green light for polygamy", but this may not be as frightening as it sounds, because this option would merely reflect the state of the law in most of the rest of the Western World. In most western countries, including most of the United States, polygamous marriages are not legally recognised, but informal marriages cannot result in prosecutions. This is still far short of equal protection - it is unfair to give legal safeguards only to monogamists - but it is the ill-fitting compromise that most states are happy with. The difference in Utah is that they actually have a large number of polygamists, and the state would be left with no weapon with which to directly oppress them. But why would they want to oppress them in a way avoided by the rest of civilisation?
• There is an issue about Mormon church members involvement in the case. The church finds the existence of polygamists embarassing, given its straight-laced clean-cut public image - and all the members of Utah Supreme Court are Mormons, which makes for fair administration of justice, especially given the discounted legal advice the Prosecution received from the law professor at the church-owned Brigham Young University.
• For the Mormon church, the Manifesto which restricted the practice of polygamy was a response to bigamy convictions. If by the simple ruse that Tom Green has followed, of legally marrying and legally divorcing his wives in succession, actual polygamy is made legal, then where does the Mormon church stand? The Mormon church would probably rather forget polygamy as it wants to pretend to be just another mainstream church, but they already accept that their eternal marriages are different from what the state allows. Would there then be any meaningful difference between what they say and what Tom Green does, if he could get away with it?
• The real "danger" is not to the state or the women of Utah, but to the Mormon heirarchy, who fear a deep split in their church when they refuse to do what their forefathers would eagerly have done - namely to consign the Manifesto to history and to become polygamists once again. Who can say what role this will have in the decisions of Utah's Mormon-dominated judiciary and all-Mormon supreme court?
• Ironically, bigamy was first banned in an attempt to keep the Mormon heirarchy from becoming a rival government. That same ban is now held in place by the Mormon heirarchy trying to tell the government what to do.
• Prosecuting attorney David Leavitt caused controversy when he took exception to press reports about the case. Salt Lake Tribune photographer Leah Hogsten recently produced a photo-story about the Green family. Leavitt asked the judge to ban the photographer from the media pool during the trial, as he feared she would produce biased photographs. This led to complaints that he was impinging on press freedom and First Amendment rights. Judge Guy Burningham refused the request, saying "It's not my place in any way to inhibit or limit the media."
• Leavitt tried to get his own way again by calling the photographer as a witness. Witnesses are not allowed in the courtroom while other witnesses are giving evidence, and this would have prevented Hogsten from doing her job. The judge ruled however that if she could agree a written statement with the defence that she would not be banned from the courtroom.
• Ironically, if it wasn't for Mormon polygamy Tom Green's prosecutor might not exist - David Leavitt, and his brother, Utah Governor Mike Leavitt, are descended from Mormon polygamists.
• A surprise visitor to the court during the trial was Utah Attorney General Mark Shurtleff who, outside the court outlined a proposal to reduce the bigamy statute from a third degree felony to a misdemeanour, angering feminist groups who want the practice to be a first or second degree felony. Shurtleff said he wants to prosecute those who are involved in child abuse within polygamous communities as well as monogamous communities, but that treating polygamy as a felony prevents witnesses from coming forward.
• Leavitt got the guilty verdict he was after despite his case seeming fatally undermined in three different ways by the very judgement which had kept the case going. (Read the judgement online) In November 2000 Judge Burningham ruled that Green was still married to Kunz, but in so doing highlighted the need for parties to believe they were "lawfully married" and said that "the proposition to create a valid marriage in the context of a criminal prosecution where the state otherwise would not recognise such a marriage as valid defies the purpose of the law." The first point is that this means the law has no problems recognising Green as still married to Kunz because they had been legally married and he was still living with her, but that any current cohabitation with the other wives may not count legally as marriage, and therefore that bigamy cannot be proven.

  Secondly, one element of the offence that needs to be proved is that Green knew he had a "wife" when he "married" the other women - but whether he did is a matter for the jury to decide, and there is plenty of evidence that Green was very careful to obtain divorces, so it would be clear that he thought he was legally unmarried.

  Thirdly, the Utah bigamy Statute provides a defence where "the accused reasonably believed he and the other person were legally eligible to remarry", which is equally susceptible to the evidence of the care Green took to be legally unmarried.

• Later in the day, Tom Green gave evidence of the circumstances that drove his family to accept government assistance, including the 1997 fire that killed his 3 year-old son. He was reduced to tears as he talked about the difficulties his family has faced, which include loss of income consequent to the decision to prosecute. Ironically the state are prosecuting Green for criminal non-support and in the process are making him less able to support his family. Green also testified that after beginning in the mainstream Mormon denomination, study of church history had persuaded him that he had to believe in Mormon fundamentalism, including the practice of polygamy. This will be important in any future challenge to the bigamy laws as it shows that the law directly conflicts with what Green feels he must do to follow his religion.

Tom Green with his attorney John Bucher The Green Family can be contacted directly at: clangreen@juno.com

The jury found Green guilty on four counts of bigamy and one count of criminal non-support on a day when prosecutor David Leavitt was allowed to introduce extra evidence from Green's employer as to his meager level of income. Green faces up to five years imprisonment on each of the counts and could also be fined up to $25,000 when he returns to the court for sentencing on June 27 at 9 am.

Green has already said he will appeal and John Bucher, his lawyer, has indicated he will work for free in order to rectify this injustice. He believes that sensationalised information offered during the trial unfairly swayed the jury's decision. It was also argued that Green could not possibly have had a fair trial in Provo, where so many people owe allegiance to the mainstream Mormon denomination that excommunicated Green, and that has a clear interest in burying stories about polygamy. It is likely that the verdict will be challenged on the basis that Green was not allowed to argue that the law interfered with his religious freedom. The anti-polygamy decisions of the US Supreme Court are now over 100 years old, and seen by many lawyers as ripe for reform, and as completely incompatible with the free-exercise clause of the US constitution. But Green is likely to have to endure a lengthy fight through Utah courts, and previous cases have shown that the local heavily-Mormon judiciary is likely to do all it can to prevent the case from reaching the Supreme Court.

Judge Guy Burningham himself had needed to make a number of controversial decisions in order for Green to be convicted. These included forcing Green into a legal marriage relationship with a woman he had divorced so that the bigamy charges could go ahead.

Mormons have long complained about the state persecution of Mormons in the 19th century. This allows them to portray Mormons as resolute and principled martyrs suffering at the hands of evil false religions. It is now clear however that it is the Mormon church itself which is so eagerly guilty of performing this role.

Links to Stories covering this issue:-

Christian Polygamy Position Paper on this case

Article, photo and contact details for the Greens and a legal fighting fund (The link to this information is provided as a public service only. polygamypage.info is not involved with the fund and cannot vouch for its management. )

Green found guilty on all counts

Mike Leavitt turns Utah Supreme Court all-Mormon Could an all-Mormon Supreme Court be unbiased against a religious practice their faith is trying to stamp out