SALT LAKE CITY -- The word polygamy should have been banned from the illegal sex trial of David O. Kingston, a lawyer told the Utah Court of Appeals Monday.
Todd Utzinger also told the appellate panel that the jury in the 1999 trial in Salt Lake should have been advised of an obscure piece of case law allowing victims of sexual abuse to be depicted as accomplices.
"In the context of polygamy is the only way this victim could tell her story," Assistant Attorney General Laura Dupaix countered. " . . . It"s relevant to motive as to why this niece would submit to sexual intercourse with her uncle."
Because of the more than 100 references to the Kingston"s practice of plural marriage " ... the jury was primed to convict Mr. Kingston of something," Utzinger said.
If the key word had been Jews, Mormons, Hispanics, or Moslems, "we would not be here having this debate today," Utzinger argued.
Kingston is now in prison after his conviction on one count of incest and one count of having illegal sex with his 16-year-old niece, who testified she was his 15th wife. He was acquitted on two other counts of incest.
The girl"s case came to light when she fled the Kingston"s Washakie-Salers ranch in northern Box Elder County after she was beaten with a belt by her father, John Daniel Kingston, for objecting to the marriage to his brother David.
The hearing Monday before appeals court judges Judith Billings, Regnal Garff and William Thorne comes during a month of renewed focus on the secretive Kingston clan.
John Daniel Kingston is currently in a custody battle in Brigham City"s 1st District Juvenile Court for his 15-year-old son. The boy fled Washakie-Salers last month, telling Box Elder Sheriff"s deputies he "wants no part" of his designated role as future head of the clan.
A 19-year-old former member of the clan has also came forward to allege to the same deputies that she was forced into an underage marriage with a Kingston.
The sheriff"s office has forwarded that case to the Utah Attorney General"s Office because the alleged offender lives downstate.
Paul Murphy, the attorney general"s public information officer and Ron Barton, the office"s "closed community" investigator who played a role in the recent prosecution of polygamist Tom Green in Juab County have refused comment except to say an "inquiry" is underway.
Two more hearings involving John Daniel Kingston are scheduled this week in Brigham City.
Today, a mediation session is set in 1st District Juvenile Court on the custody question regarding his errant 15-year-old son.
The boy is currently in the custody of the state Department of Child and Family Services. An official close to that case said the mediation will not result in custody returning to Kingston.
"It"s just not something all the parties will agree to," the official said on condition of anonymity.
The official said Kingston will need to go to trial to force the state to give up custody of the 15-year-old. A one-day custody trial is already scheduled for Nov. 19 before 1st District Judge Larry Jones.
Thursday, John Daniel Kingston is the subject of a hearing requested by Kim Hess of Tremonton seeking to extend a protective order she has taken out against him.
It was Hess" home Kingston"s 15-year-old son fled to, according to sheriff"s deputies. The boy is expected to testify during Thursday"s hearing before 1st District Judge Ben Hadfield to the alleged ongoing harassment of Hess by Kingston necessitating the protective order.
Kingston feels Hess and others orchestrated a kidnapping of his son.
Monday, Utzinger dusted off for the appeals court an early 1970s Utah Supreme Court decision in a case involving a 16-year-old girl where testimony was allowed implicating her as an accomplice in her own sexual abuse because she was granted favors in return.
He argued David O. Kingston"s trial lawyers erred in not having the judge inform the jury of that case.
"It"s the law," Utzinger said. "It may need to be changed, but it is the law."
"The defendant is asking you to blame the victim just because the perpetrator is a trusted family member," Dupaix responded.
After the hearing, she said the Utah Legislature has long since revamped state statutes "to bring us into the 21st Century . . . We were all sort of surprised when he found (the near 30-year-old case law). No one had ever heard of it"
"Frankly, I think it"s obsolete," Dupaix said. "I think the Legislature has effectively overruled it."