|Defense rests in Holm trial|
Request for experts to explain religion denied
By Rachel Olsen|
ST. GEORGE -- Jury members will receive instructions and hear closing arguments today before beginning deliberations in the case against Rodney Holm, a former police officer in the Hildale area.
The state based charges against Holm -- two counts of unlawful sexual conduct with a 16- or 17-year-old and one count of bigamy -- on his alleged sexual conduct with his third wife, Ruth Stubbs. Holm pleaded innocent to the charges at his preliminary hearing Dec. 11.
Before the defense rested Wednesday -- after calling only one witness to the stand, David Stubbs, Ruth Stubbs' father -- the issue of whether to call three additional defense witnesses was discussed. Defense attorney Rodney Parker said his expert witnesses would be needed to explain religious concepts and deeper understanding of a "door" he said the prosecution left wide open -- the door of polygamy.
"Polygamy is not on trial. Mr. Holm is on trial," said Assistant Attorney General Kristine Knowlton.
Knowlton took issue with the fact that expert witnesses were not provided to the prosecution 30 days prior to the trial to allow for rebuttal preparations. However, Parker countered Knowlton's statement because he thought the prosecution had invited an issue that would have to be discussed by his experts.
Parker was wary because of what prosecution co-counsel Paul Graf said in opening arguments. Parker also cited what he thought were the prosecution's insinuations on religious beliefs and questions that elicited further evidence of religious beliefs.
Fifth District Court Judge G. Rand Beacham said anything mentioned in opening arguments was not evidence. He had instructed the jury accordingly, thus polygamy was not an open door.
If he was not allowed expert witnesses, Parker said he believed the case should be declared a mistrial. After further discussion on expert witnesses, the court decided simply to read a summary of the witnesses' testimony on the record without the jury present.
Also during Wednesday's proceedings, defense co-counsel Max Wheeler renewed the defense's motion to dismiss, which was filed July 31, the same day as the trial management conference for the case.
Wheeler argued issues such as the unconstitutionality of the charge of bigamy considering the U.S. Supreme Court decision in Lawrence v. Texas, where the court ruled on issues regarding privacy laws and sodomy. He also mentioned inadequacy of the evidence on the two counts of unlawful sexual conduct. Evidence presented by the government was insufficient to prove a specific act of sexual conduct, he said. The state could not take the birth of the two children, count backwards and pinpoint a specific date to when or where those children were conceived, referring to the idea that the children might not have been conceived in Utah and, therefore, not in the court's jurisdiction.
"(It's like) offering evidence someone is a bank robber to prove someone robbed a bank at a specific date and time," Wheeler said.
Defense attorneys also took issue with what they believed was an inability of the jury to come back with a uniform verdict on the bigamy charge. The bigamy charge is based on a two-pronged statute: It can include purporting to marry a person or co-habitation with someone other than a spouse.
Wheeler said jurors could come back with a guilty verdict on bigamy, and some could be voting guilty of co-habitation, while others could be voting guilty on the purported marriage.
Knowlton countered by saying she had taken care of that because jurors would need to say what they uniformly voted on -- one prong or the other, or both.
The last issue Wheeler raised was that the defense thought the charge of bigamy against Holm was an "uneven application of law and unconstitutional." The state merely sought to prosecute Holm because he lived in a polygamous community, Wheeler argued. The state did not seek to prosecute those who lived with someone who was not their spouse or those who practiced non-religious bigamy. Knowlton responded to that issue by mentioning three cases she could think of where the state had prosecuted people involved in non-religious bigamy.
After deliberating alone in chambers, Beacham returned saying every issue defense took was either not an issue or something that would have to be brought up during an appeal.
Following the lunch recess, the court reconvened without the jury present. Parker read the summarized testimonies of expert witnesses and explained things such as the culture of the polygamist community.
The summary by Kenneth Driggs, Georgia attorney and expert on the FLDS culture, mentioned that marriage in the Fundamentalist Church of Jesus Christ of Latter Day Saints was entered into in the deepest, most sincere way. Leaders are wary of accepting new members because they do not want those who simply seek sexual gratification and that to interfere in with FLDS practices would be interfering with their religion.
Psychologist Matthew Davies' summary offered a comparison with sexual predators and those who were in the FLDS faith, like Holm. He said Holm did not possess the characteristics usually held by those who commit sex crimes. He also said to take an element of FLDS culture and to ask Holm to obey the law while also following his religious beliefs would be incomprehensible and incompatible for him.
Jury members will deliberate on evidence that includes exhibits of "marriage" photos of Holm and Stubbs, birth certificates of Holm, Stubbs and their two children and the marriage certificate for Holm and his first, legal wife. One piece of evidence not received by the court was a defense exhibit of a passage about plural marriage in the Doctrine & Covenants, a book regarded as a revelation from God by the FLDS faithful.
Beacham also mentioned the possible need to excuse one juror who has had a family situation arise.
Originally published August 14, 2003
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