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Jury Awards 71 Animals To State
The appeal trial in the Natural Bridge Zoo case ended around midnight on Monday in a mixed verdict, with ownership of 71 animals given to the state and 29 to be returned to the zoo.
At the end of the general district court hearing in January, Judge Gregory Mooney had ruled that ownership of 61 animals would go to the government, with 39 returning to the zoo.
The animals awarded to the government by the jury Monday included one Burmese python, two ball pythons, a Gibbon, 17 Capuchin monkeys, six Tamarins, 14 tortoises, 14 macaws, three ground hornbills, five redeared slider turtles and one painted turtle, a dog, a mini donkey, and a Skink.
Ownership of all four giraffes is also to be transferred to the government.
The animals to be returned to the zoo include an albino python, a Gibbon monkey, two sacred ibis, one Kookaburra, one macaw, three Cockatoo, four Amazon parrots, two red-ruffed lemur, three white-ruffed lemur, and six ring-tailed lemur, two llamas, a sheep, a donkey, and a Serval.
In a press release yesterday, the state office of the attorney general called this a “landmark verdict,” and thanked law enforcement and the jury.
“Virginians support clean, safe environments for animals, whether they be personal pets or zoo animals. We are grateful for the jury’s thorough deliberation and thank our law enforcement partners for their assistance in ensuring the future welfare of these animals,” said Attorney General Jason Miyares.
The jury reached this decision around 11:30 p.m. on Monday, March 4, following five days of testimony and over 10 hours of deliberation.
Overall, 23 witness were called, 17 for the government and six for the zoo, during the trial in Rockbridge County Circuit Court.
Jurors were instructed that each animal was to be considered separately and were given 100 verdict forms to fill out, each listing one animal and asking for a yes or no response to the question of whether the animal in question had been cruelly treated or deprived of adequate care in a way that constituted a direct and immediate threat to its life, safety, or health. -Attorneys representing zoo owners Karl and Debbie Mogensen, the respondents in this trial, called the last of their witnesses Monday morning, and closing arguments were presented before the jury went into deliberation around 1:30 p.m.
Erin Harrigan, on behalf of the zoo, asked the jury to look for more than one story.
“The story the county told you wasn’t actually the story of these animals and how they were cared for by the Natural bridge Zoo. You have to ask yourself whether you heard the right story, and I think that you actually heard two stories,” she said.
Harrigan returned to one of the themes of the zoo’s defense, reminding the jury that the animals were seized from winter housing and by authorities from outside of Rockbridge County.
“One of the stories and the county’s comment was they were going to pull back the curtain on the zoo. They did, they pulled back the curtain on the zoo. Ask yourself, why they picked that day, that time, to pull back the curtain on the zoo,” she said. “Was that what the animals really looked like in the care of the zoo, and the keepers?
“You have people coming from different places, outside of this county, and outside of this community, who aren’t familiar with this zoo, who don’t know the people who operate this zoo,” said Harrigan.
She also argued that the Natural Bridge Zoo’s policy on keeping older or handicapped animals in its collection was part of what led to the its disagreement with the government’s witnesses.
“Go back and look at the evidence and ask yourself if there’s actually a story here, played out through the evidence that is the story of a zoo with a policy of keeping handicapped animals, older animals, animals that might not be the prettiest specimens out on display,” Harrigan said.
“When you go back, animal by animal, you’re going to find the decision to seize was arbitrary. It was not because of anything the zoo was doing. And you’re going to find the respondents should have their animals returned to them.”
In her closing arguments, Michelle Welch of the state attorney general’s office, representing the county of Rockbridge, the petitioner in this trial, reminded the jury of her promise, during opening arguments, to “pull back the curtain on the zoo.”
“We did pull back the curtain. There aren’t two stories. Respondents’ story is a fantasy. There is no evidence to support it,” she said. “There aren’t two stories, there’s one story. There’s the story of the seizure. The defense is a fantasy.
“They try to take one little thing out of each single animal and say that that was the only thing that was wrong with them,’ she said. “That’s not what the vet records say and that’s not what the testimony said.”
Welch again asked the jury to think about the seizure in terms of the animals.
“When we find animals suffering, we don’t have to wait until they end up in this zoo’s freezer. We don’t have to wait for them to die before we come in to seize them,” she said. “That’s what the law is designed for; it’s what the seizure law is all about.” -Originally scheduled to begin Monday, Feb. 26, the trial was delayed due to a dispute over pretrial motions. The county began its case last Tuesday, calling witnesses to testify about the Dec. 6 and 7 search of the zoo.
As explained in last week’s issue of The News-Gazette, Christine Boczar, a sergeant with the Powhatan Sheriff’s Office, took the stand to speak on the search warrants, for which she was the affiant, and two special agents with the Virginia State Police entered a number of photographs into evidence and testified about items, including drugs, seized from the zoo.
Later on Tuesday, Amy Taylor, an investigator with the attorney general’s office, testified on the search of the zoo and what was found.
Taylor contacted Boczar to go to the zoo, undercover, last October and November to gather information that would eventually be used in the search warrant, obtained in Powhatan County.
She said that Boczar was chosen because zoo staff would be unlikely to recognize her.
“If you own a zoo in Rockbridge County, you most likely know who the animal control officers are and most law enforcement officers,” Taylor said. “I wanted somebody to go that was not familiar with the park, not familiar with the people, not familiar with the area, that could just go in and see what they see.”
During the execution of the warrant, Taylor interviewed zoo employees, who she said were informed of their right to leave.
These interviews began around 9:30 in the morning of Dec. 6, and ended slightly before noon, with the keepers accompanied by a state police officer once released.
Taylor testified to a number of medications found, some of which were stored improperly. One drug, ketamine, led to a call to the Drug Enforcement Agency.
She also spoke about a large walk-in freezer on the property, which stored dead animals and a number of animal parts. Taylor called the number of animals in the freezer “overwhelming”, and estimated it to be over 50.
Nearly 30 specimens were selected, endangered or vulnerable species or bodies needing further investigation, and sent to Virginia Tech to be analyzed.
Samantha Moffit, a veterinarian who was part of the search of the zoo to examine agricultural animals, testified to her reasons for recommending seizure of two lamas, a donkey, a mini donkey, a sheep and a dog. -Last Wednesday, the court heard two motions to overrule summons to testify, one from Powhatan County’s commonwealth’s attorney, Rob Cerullo, and one from a representative of People for the Ethical Treatment of Animals.
Attorneys for the zoo had requested several records from the commonwealth’s attorney relating to the Dec. 6 search of the zoo and Boczar’s involvement.
A question was also raised about the Virginia Animal Fighting Task Force, a nonprofit group, of which Boczar and Welch are both members.
Welch explained the task force as “a loose group of experts who go in and help localities. They don’t have any individual law enforcement power, so they’re going in under a county asking them to come in,” and called the request for records a “fishing expedition.”
However, Judge Christopher Russell noted that Rockbridge County had not requested the task force, or been alerted to its investigation.
“Our officers don’t come into Powhatan County and do that and I would think your people would take some offense to that,” he told Cerullo. “You are not a party to this. Now if Powhatan is involved in a criminal investigation in Rockbridge County, I want to know about that by 4 o’clock today.”
The information was delivered by Russell’s deadline, and he overruled the subpoena.
A representative for PETA also asked a subpoena from the zoo attorneys to be overruled, saying that organization had only been involved in the investigation about the elephant, which is not at issue in this case.
Though treatment of the elephant featured prominently in the search warrants, she was not seized, as she was not on zoo grounds when law enforcement arrived on Dec. 6.
Russell granted this motion as well. -During Wednesday’s testimony, Valerie Johnson, a veterinarian with the Wild Animal Sanctuary in Colorado, took the stand to speak about Zeus, a white Bengal tiger euthanized on the first day of the search.
Johnson said the animal appeared ill: moving slowly, very thin, walking as if in pain. Zeus was later determined to have what she called “very advanced” terminal cancer.
She said veterinarians with the search consulted with Ashley Spenser, who works in the Blue Ridge Animal Clinic and as the zoo’s on-call veterinarian, and with Gretchen Mogensen, zoo manager, who said that the tiger was under observation.
When given the option to have the tiger euthanized or seized, Mogensen chose euthanasia.
Johnson said that though it took three attempts to sedate the tiger, once administered, the euthanasia drugs took effect quickly. She also said that Mogensen was present for the animal’s death. -Much of the testimony on Wednesday came from Ernesto Dominguez, the lead veterinarian on the Dec 6 raid, who walked the jury through the nearly 100 animals seized, detailing his reasons for all.
Dominguez spoke of a building that housed Capuchin monkeys, tortoises and several types of exotic birds, which he said was cold and smelled strongly of ammonia.
He testified that the tortoises were living in filth, both their own and droppings from the bird cages directly above their enclosure, that they didn’t have enough water and what they did have was contaminated.
Because of his concerns about the smell, Dominguez took the birds outside and gave them injections of subcutaneous fluid. Birds were also seized from another building on the property, some of which later tested positive for a viral disease.
He cited concerns about habitat and husbandry as the basis for seizing four snakes, as well as several turtles and a Skink (a type of lizard).
A number of primates, Gibbons and Capuchin monkeys, as well as several lemurs and Tamarins, were also taken, partly due to concerns about habitat — a strong smell of propane in one monkey’s enclosure, cages that were too small for the number of animals in them, and lack of enrichment.
Dominguez also expressed concern about a lemur which appeared to be a hybrid of two endangered species.
During a nearly four-hour cross-examination by Harrigan, Dominguez revealed that two of the animals, the Skink and a Gibbon, have died since being removed from the zoo. -On Thursday, the government called more witnesses to testify on the conditions of the animals, both before and after seizure.
Cherryl Antonucci, a veterinarian at the Metro Richmond Zoo, testified about several animals, including the Skink and a Gibbon, transferred to that facility.
Antonucci told the jury that the Skink had underlying health problems, and, though treated on arrival for a suspected infection, was found dead on Jan. 15.
Based on an after-death veterinary examination, she attributed this animal’s death to gout, which she called a chronic condition, and suspected may have been related to improper diet and being housed in the wrong environment at the Natural Bridge Zoo.
A Gibbon, transferred from Natural Bridge, also died at the Metro Richmond Zoo.
Antonucci detailed a number of tests and veterinary monitoring performed on this animal, which nevertheless died, suddenly, on Feb. 5.
Examinations on the Gibbon showed inflammation in the gastrointestinal tract. Antonucci said that the animal likely had inflammatory bowel disease, leading to an ulcer, which ruptured into the blood stream, causing death.
Four pythons were also transferred to Metro Richmond, as well as some of the larger tortoises.
Most of the snakes, Antonucci testified, arrived showing signs of infection, and all were treated with antibiotics. She also saw evidence of skin which had not properly shed, which she attributed to issues in the snakes’ habitat.
Some birds from Natural Bridge were sent to the Maryland Zoo in Baltimore, and Ellen Bronson, a veterinarian with that facility, was called to testify.
Two Sacred Ibis, both of which had issues with their beaks, one broken and one severely unaligned, as well as a Ground Hornbill, are currently being kept in Baltimore.
Bronson testified that the two Ibis arrived very thin, saying she had “rarely seen animals, ever, that were in human care, coming into our zoo in this poor body condition.”
Zoo staff in Baltimore have been working to find creative ways to present food in a way that the animals can manage, and Bronson said they have seen improvement. She also said that the zoo is planning surgery to correct one Ibis’s beak, as well as cataract surgery for the Hornbill.
Veterinarian Suzanne Biller called in from Florida, where she has observed several of the Capuchin monkeys, most of which she said were in good condition.
One had significant hair loss, but Billier said it may be due to the monkey carrying its baby on its back. -The county rested its case Friday with a final expert witness, Amy Phelps, called to speak on the four giraffes which were not seized from the zoo, due to the difficulty of transporting them.
Phelps, who also testified during in during the first hearing in general district court last month, was qualified as an expert witness on the basis of her many years working with giraffes, and her current position as a zoological manager at the Oakland Zoo in California.
She reviewed her concerns about the habitat and care for the giraffes: a barn which she said was dusty and too cold, contradictory instructions on feeding a mix of grain she thought inappropriate for the species, one of the giraffes being too thin and others too heavy.
In addition, she testified to the lack of enrichment in their enclosures. “It’s prison, without enrichment,” she told the jury.
Phelps also observed zoo staff interacting with giraffes in ways that opened them up to injury.
The state of the giraffes’ hooves was a significant issue in testimony on these animals, with Phelps testifying they were too long, causing pain and difficulty walking in the short term with potential longterm joint damage, and that they recieved inadequate care. -Zoo attorneys opened their case on Friday, calling their own expert witness to speak on the giraffes.
Liza Dadone, a veterinarian who previously managed giraffes at the Cheyenne Mountain Zoo in Colorado and currently consults for zoos and animal owners, also testified about the Natural Bridge Zoo giraffes.
Dadone visited Natural Bridge Zoo in January and February of this year, observing the current care and keeping of the animals and making recommendations for the future.
Overall, she said that the giraffes were healthy, and that, though she suggested improvements which are in the process of being implemented, the habitat and care practices of the zoo were sufficient.
Some of those suggestions are for more enrichment, and she has begun a training program, which should eventually allow the giraffe’s hooves to be trimmed at the zoo.
Zoo attorneys also called William Peratino, an expert in zoo management, to testify on the zoo’s facilities, in particular the care of the birds.
Peratino visited the zoo after animals had been seized, and reviewed the buildings and habitats.
The building that housed monkeys, birds and tortoises, which was a focus of the county’s argument, Peratino found sufficient, saying the placement of tortoise enclosures in different parts of the room allowed each to have its own environment.
He also said the cages from which birds were seized were adequate housing. -On Monday, zoo attorneys called a final witness, State Trooper Chris Boblik, who was present for the Dec. 6 search of the zoo, and who testified that most of the zookeepers were not allowed access to the zoo until around 1 p.m., and then only when escorted by a state trooper.
Attorneys for the zoo also moved to call Gretchen Mogensen, who manages daily operations at the zoo, to testify on Monday.
Welch objected to this, as Mogensen had not been included on the original witness list, and told the judge that she had not been notified of that she would be called until 2 that morning.
“We’ve been here for five days, and they sent their intent to call at 2:04 a.m.,” she said. “It is a surprise — they didn’t disclose it, it shouldn’t come in.”
Though Russell ruled that Mogensen would not be allowed to testify, zoo attorney Aaron Cook read a summary of what her testimony would have been into the record, in case of a later appeal.
This summary covered the zoo’s regular care and feeding practices, as well as her account of the seizure. -On Friday and Monday, at the conclusion of the county’s case and their own, attorneys for the zoo made a motion to strike much of the evidence presented on behalf of the county.
On Monday, Harrigan argued that witnesses called by the county contradicted themselves between testimony and cross-examination.
She called the concerns on the scene “virtually baseless,” noting the lack of measurements for enclosures determined to be too small, or of areas determined to be too cold.
Harrigan also argued that this trial was an attempt to change standards for animal care in the state.
“The county is trying to change the standard in this state, and Ms. Welch has said it multiple times throughout these proceedings — the law at the state level is more stringent than at the federal level.
“I think what you saw this week was a difference in philosophies in the operation of zoos. The county brought in individuals from all the way across the country, from outside of this county, to come in, and they all shared a similar philosophy,” she said.
Harrigan referred to the comparison, made by multiple government witnesses, between a habitat without enrichment and a bare room.
“Here we’re talking about a level of care to give the animals, and they’re describing it as a room and they’re likening it to people — a room with no furniture, a room with folding chairs and folding table or a room with nice furniture,” she said.
“What they’re saying is that if they walk into a zoo, and in their subjective mind they assess that facility as one that is the folding table and chairs type of facility, they are entitled to seize those animals because they can put them at a zoo where they can have couches and an entertainment center. That cannot be the standard of seizure,” she said.
Welch argued that these were questions which should be given to the jury. She also cited a broader range of issues, both health and habitat, that led to the seizure of the animals.
“It’s a jury question,” she said. “We have proved this beyond a reasonable doubt. We went into every animal, numerous issues on each animal,” she said. “They keep picking out one or two things for each animal.
“The characterization that it’s OK because respondents want it to be OK, is just not how the testimony played out,” she said.
Russell overruled the zoo’s attorneys’ motions to strike the county’s evidence. -A post trial hearing has been scheduled for April 4 to rule on a potential appeal bond, and on Welch’s motion for unannounced inspections of the zoo for a period of five years.
