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At a post-trial hearing last week, attorneys for the Natural Bridge Zoo filed a number of motions, including one to disqualify Michelle Welch, of the state attorney general’s office, and two to overturn the final jury verdict.
Of the three most significant motions, two were rejected by the judge and the third taken under advisement.
In early March, at the end of a six-day trial in Rockbridge Circuit Court, a jury determined that ownership of 71 of the 100 animals seized during the December 2023 search of the zoo would be transferred to the state, while the remaining 29 would be returned to the zoo.
The April 4 hearing was set to rule on post-trial motions and determine how much money zoo owners Karl and Debbie Mogensen would be required to pay toward the cost of care for the animals that were awarded to the government.
However, last week’s hearing ended up focusing on the motions filed by the zoo’s attorneys, with the question of paying care costs put off until another hearing June 10. The government was ordered to produce affidavits documenting the costs of care for the seized animals in the meantime. -In an April 3 filing, attorneys for the Natural Bridge Zoo owners moved to have Welch and the Animal Law Unit of the state attorney general’s office removed from the case.
“Attorneys in the Animal Law Unit in the Virginia Office of the Attorney General have taken extraordinary steps that infringe on [the Mogensens’] rights to due process and have a material conflict of interest that prohibits them as acting as the neutral arbiters of justice that due process requires in government seizure actions such as this,” the motion reads.
It goes on to allege that information was concealed from zoo attorneys in the lead-up to the trial, specifically that the veterinarians who testified to the condition of the animals after seizure were not provided with records of previous veterinary care, or of the travel and transport conditions of the animals.
Attorneys also claim that among the documents seized from the zoo were privileged communications and records, including legal briefs and communications with attorneys about a federal lawsuit that the Virginia Animal Owners Alliance brought against the Animal Law Unit last year.
In court, Erin Harrigan, representing the Mogensens, argued that private communications about a lawsuit are “firmly protected information,” and that Welch should have been removed from the case after having seen the documents, as they gave her an unfair advantage.
Harrigan also cited witness tampering and intimidation as a reason to disqualify Welch, saying it was difficult to contact state “rescue partners,” the facilities that currently house the seized animals, due to instructions from the attorney general’s office.
In her response, Welch said that these instructions were given out due to safety concerns.
“The condition that the respondents not contact and of the people who adopt, transport, or care for animals now in the county’s custody was prompted by reports that Karl Mogensen contacted at least one giraffe transporter and threatened violence,” and only applied to Karl and Debbie Mogensen, not their counsel.
Welch argued that the motion to remove her was “wasteful and time consuming” and that it would require a “high standard of proof,” which she did not believe was met.
“They are trying to invent a conflict to get the Animal Law Unit out of this case, and it is just that — invented,” she said. “They’ve done nothing more than make up a motion to disqualify me and my team so justice is not served.”
On the lawsuit, Welch said it was one of multiple lawsuits filed against the Animal Law Unit in federal court, all of which were dismissed.
She also said that the Mogensens were not in a position to assert attorney-client privilege for the document in question.
Judge Christopher Russell overruled the motion to disqualify Welch and the Animal Law Unit, saying it was “asking a drastic remedy.” -Additionally, zoo attorneys filed two motions to overturn the jury verdict.
The first motion argued that the evidence presented by the state’s witnesses was not sufficient to justify the final verdict.
In arguing this motion before the judge, Harrigan cited lack of temperature measurements in rooms witnesses testified were too cold, and to lack of measurements for enclosures.
She also said not enough weight was given to the fact that the animals were seized from winter housing, rather than their exhibit habitats, and that the raid happened before regular morning care routines.
This motion mirrored two filed during the trial itself, which tried to strike the evidence presented by the government’s witnesses, both of which were overruled, as was the post-trial motion to overturn.
A second motion to overturn the jury verdict cited decisions made during the trial as its justification, mainly the exclusion of Gretchen Mogensen, who manages day-to-day operations at the zoo, as a witness.
Though she was not included on the list submitted before the trial, zoo attorneys attempted to call Gretchen as a witness early in the morning on the last day of the trial.
At the time, Welch objected to her inclusion and Russell decided that she would not be allowed to testify.
Last week, Aaron Cook, representing Karl and Debbie Mogensen, asked that Russell reconsider that ruling, and “get it right.”
He emphasized how significant Gretchen’s testimony is, saying that he “can’t overstate the significance, the materiality, of her testimony,” which would have covered feed and care routines, decisions about habitat size and winter housing, and training of other keepers.
Cook said she was “inadvertently” left off the witness list, and argued that excluding her testimony was a “drastic remedy for a minor error.”
In her rebuttal, Welch argued that Gretchen’s omission was not inadvertent, but part of a larger strategy.
Welch said that she was notified that zoo attorneys intended to call Gretchen “on Monday, 2 a.m. on the last day of trial. They had seven days to correct [the error], five days in front of the jury.
“This is a tactic, by the respondents,” she said, noting that several of the motions brought to the hearing were filed after the court’s deadline. “Surprise and trickery are not a part of this trial, and that is what this was.”
Russell did not rule on this motion, but took it under advisement.
