How much does it cost to board a tortoise?
Don’t ask the Rockbridge County Circuit Court. That body ran out of time to hear full arguments on costs associated with the care of the 100 animals seized by law enforcement from the Natural Bridge Zoo in a December raid during Thursday afternoon’s post-trial motion hearing at the Rockbridge County Courthouse.
In early March, a jury awarded 29 of the seized animals back to the zoo owned by Karl and Debbie Mogensen. The other 71 are to remain in state custody. Thursday’s hearing was supposed to wrap up the appeal of the county’s case against the Mogensens, scheduled to nail down details in the costs associated with care of the animals and how much of that burden the Mogensens would bear.
But other motions filed by zoo attorneys Erin Harrigan and Aaron Cook — various attempts to convince the court to throw out the jury’s decision — took precedent in Thursday’s proceedings. They opened with a motion to disqualify from the case senior assistant attorney general Michelle Welch and the Animal Law Unit she oversees from the statewide office, effectively rendering the March jury trial moot.
Harrigan argued that Welch and her team had a conflict of interest in their involvement with the law enforcement raid, surprising the defense team with more seized documents than originally disclosed, silencing would-be witnesses, maintaining custody of confiscated documents that should have been subject to attorney-client privilege, and asking for “extortionate amounts of money” to care for the animals taken from the zoo in December. No costs associated with the care of specific animals were discussed in Thursday’s hearing.
Much of Harrigan’s argument centered around the testimony of Lois Magill, operator of New Freedom Farm in Botetourt County, who held five animals for the attorney general’s office following the raid. Magill said in testimony in the February and March jury trial that the animals she took from the zoo were relatively healthy, and Harrigan said Thursday that Magill “was paid back in spades for her testimony,” by the commonwealth’s officials, including an investigation into her own sanctuary farm, and was compelled to hire an attorney for herself.
Harrigan alleged misconduct on the part of Welch and the ALU both in the handling of Magill’s testimony and other would-be witnesses who would not speak to the zoo’s attorneys, supposedly on the basis of a memorandum of agreement signed by several non-law enforcement personnel involved in the December raid stipulating those people not testify without the involvement of the attorney general’s office.
But Welch pointed out that Magill did not sign the document and did testify, also noting that her testimony undoubtedly helped the Mogensens in the eyes of the jury. She also spoke passionately about the motion to disqualify, calling it “wasteful and time-consuming,” and alleging that the Mogensens’ attorneys were only raising the issue Thursday “because they’re not happy with the verdict.”
She called the witness-chilling allegations “triple hearsay.”
“I don’t know how many times I have to say it,” Welch said. “I am an officer of the court. … I have not threatened that woman. I have not talked to her since she took the stand. I have basically blocked her from my phone. … I have not tampered with Ms. Magill.”
Judge Christopher Russell agreed with Welch.
“Why wasn’t this raised in December, January, February, March?” he asked.
The motion was overruled.
So, too, were the zoo’s motions to set aside the jury verdict from last month. Harrigan based her motion on what she called “insufficiency of evidence,” arguing that the county’s witnesses were contradicted by photographs also submitted into evidence by the county.
Russell didn’t agree, noting that many of the witnesses were qualified as experts by the court without exception from the defense, and that their testimony, too, was evidence in the trial. He also noted that Harrigan could have recalled many of those witnesses to the stand during the trial if she hadn’t exhausted her examination of them or if new evidence had come to light.
Cook, the other attorney for the Mogensens, then presented another motion to set aside the verdict, this time asking for a new trial in circuit court. It was also overruled.
Cook said the court had erred in disallowing testimony from Gretchen Mogensen, daughter of Karl Mogensen and the zoo’s manager, after she was inadvertently left off the initial witness list submitted by his team.
“She was in fact the individual responsible for running the zoo,” Cook told the judge. “She was not a collateral witness. … She was significant to our case. She would have filled a lot of the gaps in the evidence,” such as the animals’ care routines.
Welch told Russell, who disallowed Gretchen Mogensen’s late entry onto the witness list during the trial, that he had done his job.
“You did keep her off the stand, and that was appropriate,” Welch said.
Russell left that motion on the table until full transcripts of the trial, including a proffer of Gretchen Mogensen’s intended testimony, were available in a few weeks. At that time, the judge said, he would hear both that motion and the matter of the cost of the animals’ care.
The continued hearing is scheduled for 9 a.m. June 10.
