A judge incorrectly declared Tom Green legally married to Linda Kunz and then made the marriage retroactive, which allowed the state to convict him of bigamy, the lawyer for the polygamist family is contending.
The argument is contained in Green's appeal, filed on Monday, of his 2001 conviction on four counts of bigamy and one count of criminal nonsupport. Green was convicted of child rape charges in June for fathering a child with Kunz while she was 13. The judge added a concurrent sentence of 5 years to life to the 5-year prison term he was already serving for the bigamy convictions.
Green's appeal argues that Judge Donald Eyre should not have issued a decision before the bigamy trial ruling that Green and Kunz were legally married under the common law marriage statute.
John Bucher, Green's lawyer, contends that the common law statute states that the cohabitation must be "constant and exclusive, and entered into with intent to be husband and wife." The judge's ruling allowed then-Juab County Attorney David Leavitt to argue that Green was guilty of bigamy for being married while living with four other women.
During the trial, Green refuted that he lived with any of his wives exclusively or that he intended to be husband and wife with them in any legal sense.
"Linda Green is my wife by my definition all the time, as are all the other mothers of my children," he said during the trial. But he added, "According to the government's definition of wife, I don't think any of the mothers of my children qualify all the time."
Green, his five "spiritual wives" and 25 children lived in a group of mobile homes in Juab County's Green Haven. Green had a separate motor home and rarely ate meals with the family, said Bucher. He also did not have a "permanent sexual relationship akin to that generally existing between husband and wife," which is necessary to prove a common law marriage.
Bucher says the bigamy statute is "unconstitutionally vague" because it does not adequately define cohabitation.
Brian Barnard, a lawyer for the Utah Civil Rights and Liberties Foundation, filed a friend of the court brief supporting Bucher's position.
The brief states that Utah is the only state that defines bigamy as when a married person lives with an adult who is not his or her spouse, even when a second marriage never took place.
"The cohabit provision in Utah's anti-bigamy statute is a vestige of 19th century governmental animosity towards the religious practice of polygamy," according to the brief.
Prosecutors for the Utah Attorney General's Office did not return calls seeking comment late Monday