Judge rejects Natural Bridge Zoo motion for retrial

This story is part of our ongoing coverage of The Natural Bridge Zoo's legal problems starting with a Dec. 6, 2023 search warrant. To catch up from the beginning, click here.

LEXINGTON – Judge Christopher Russell dismissed efforts by the Natural Bridge Zoo defense to have the Rockbridge County Circuit Court trial start again from scratch on April 4.

It's been over a month since a jury came back with a verdict, returning 29 of the 100 seized animals to the zoo and keeping 71 animals with the Commonwealth. One of the returned animals, a gibbon, and one of the animals to stay with the state, a skink, passed away before the jury heard the case.

The April 4 hearing was initially about how much money Natural Bridge Zoo will have to reimburse the state for care of the animals. The defense argued the invoices submitted by the state were too varied in price to be fair market for every animal. The prosecution was ordered to provide affidavits explaining the price of care within a month.

Despite the intended focus, the financial discussion was only a small part of the nearly three-hour hearing. Much of the court's time was used on new, post-trial motions from the defense:

• A motion to disqualify the Animal Law Unit of the Virginia Office of the Attorney General, including appointed Rockbridge County prosecutor Michelle Welch.

• A motion to set aside the verdict and grant a new trial because "the court erred when it excluded the testimony of Gretchen Mogensen."

• A motion to set aside the verdict because "the county has failed to prove their case beyond a reasonable doubt and the evidence is insufficient as a matter of law to sustain the jury's findings."

Should the prosecutor be disqualified from the case?

Judge Russell took up the motion to remove Welch first. The motion itself characterizes the situation as "witness tampering."

"Ms. Welch, both in the General District Court proceeding and before this court, threatened criminal prosecution for every single witness from Blue Ridge Veterinary Clinic and insisted, vehemently, on those witnesses being admonished about their criminal prosecution exposure," reads the defense motion. "Attempts by counsel for respondents to contact several potential witnesses who were present on scene that day, including Dr. Ashley Spencer, were unfruitful prior to trial."

As explained by defense attorney Erin Harrigan, Welch spoke against Lois Magill of New Freedom Farm, one of the defense witnesses, to a Commonwealth Attorney in Botetourt County. The witness serves as an animal rescuer in Botetourt County, and she took animals in after the initial Dec. 6 warrant at the zoo. She refused to sign a document agreeing to "keep all information gained through [her] participation in this investigation confidential to the extent allowed by law or as approved by the Office of the Virginia Attorney General."

Because of this refusal, the defense alleges Welch retaliated against MaGill, calling the Botetourt prosecutor. After the call, MaGill told the defense there was an increased police presence around her farm. Someone submitted a complaint about her farm to the Global Federation of Animal Sanctuaries, and MaGill pointed to Welch.

Through both trials, the defense has pointed to involvement of People for the Ethical Treatment of Animals (PETA) as an issue in the case. The motion states the "prosecutor's entanglement with organizations such as PETA is risky as it conflates a subjective embrace of activist values with a prosecutor's and a police officer's sworn duty to enforce the law without favor." The circuit court trial confirmed an anonymous informant in the warrant application works for PETA, but no other links were established between PETA and the Animal Law Unit.

Harrigan stated the case needed a neutral prosecutor. "We don't have that."

The defense motion provided text messages between herself and MaGill explaining "the world [sic] nastiest divorce" is why the Natural Bridge Zoo animals were moved from MaGill's farm. The Commonwealth's response also calls the document MaGill refused to sign "unenforceable."

Welch denied these claims, saying she did not threaten MaGill, “I haven’t done anything to Ms. MaGill.” Welch also denied filing a complaint against MaGill, saying the complaint could have come from anywhere. None of the court filings suggest who might have submitted the complaint.

The Commonwealth's response also explains its relationship with outside organizations. "The Virginia Animal Fighting Task Force and Animal Law Unit does not receive funding from PETA and does not take orders from PETA. At trial, respondents questioned witnesses at length about their involvement with PETA and found only one witness with a tenuous connection to PETA."

The defense left Mogensen off the witness list. Should she have been allowed to testify?

Natural Bridge Zoo Manager Gretchen Mogensen did not testify during the circuit court trial, a contrast to her testimony during the general district trial.

Mogensen was not included in the defense’s initial witness list. Defense Attorney Aaron Cook called this an accident, and he filed to have her included when he discovered the mistake. The filing came in at 2 a.m. the morning of the final day of witnesses in the trial. In the filed motion, the defense wrote, "excluding relevant and admissible evidence as 'punishment' to counsel for inadvertent and non-prejudicial discovery violations is not appropriate."

Welch disagreed, saying “this is a tactic” for trial. The Commonwealth disputed the omission was an accident in its filed response, "This assertion of an inadvertent omission becomes especially questionable when, while attempting to convince this court to allow Ms. Mogensen to testify, respondents shifted their arguments from an inadvertent omission into a change in trial strategy due to the testimony elicited at trial."

During the hearing, Welch said the prosecution prepared its case without including plans for Mogensen because she was not on the witness list.

“It is their mistake,” Welch said, objecting to all the motions for a new trial.

In the same motion, the defense argued the chain of custody of evidence was broken during the execution of the search warrant. Because law enforcement entered the zoo in the morning before the staff had a chance to feed animals or clean cages, the zoo was not in the state it would have been in normally, breaking the chain of custody. Welch disagreed, saying this argument was a question for the jury, one that was discussed at length.

The defense argues the evidence wasn't legally enough for a seizure. Will the judge agree?

The defense's final motion argues the evidence against the zoo was insufficient to legally prove the animals were cruelly treated or deprived of adequate care, saying the expert witnesses gave inaccurate testimony.

As an example, Harrigan pointed to Veterinarian Ernesto Dominguez's testimony on the condition of the so-called tortoise-bird-monkey building. In the testimony, Dominguez stated there were no windows or fans in the building. However, windows and fans are visible in some of the pictures from the warrant's execution.

Welch argued expert testimony is something for the jury to consider during the trial, and there would need to be substantial grounds for a judge to reject the verdict after a jury has rendered it.

“All this is, they’re just unhappy with the verdict,” Welch said.

Judge Russell answers the motions with a resounding 'no'

The judge sided with the prosecution each time, dismissing the motions for new trial and motions asking for Welch to be disqualified. The judge said someone would “have to read so far between the lines” to see enough to disqualify Welch from the case, that Mogensen was correctly disqualified, and many of these matters were presented to the jury during the trial.

Defense Attorney Aaron Cook also referenced a likely appeal to have the case reconsidered a third time in the Court of Appeals of Virginia.

The next hearing in the case, the disposition and how much the Natural Bridge Zoo will have to reimburse the state for care of the animals, will be considered on June 10.

Judge Russell also put a stay on any new motions in the case.

Lyra Bordelon (she/her) is the public transparency and justice reporter at The News Leader. Do you have a story tip or feedback? It’s welcome through email to lbordelon@gannett.com. Subscribe to us at newsleader.com.

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This article originally appeared on Staunton News Leader: Natural Bridge Zoo motions for retrial, Judge dismisses