By Margaret Beimdiek
A Rockbridge County Circuit Court judge refused yesterday to disqualify lawyers from the state Attorney General’s office who are prosecuting the animal cruelty case against the owners of the Natural Bridge Zoo.
Judge Christopher Russell rejected the defense lawyers’ request for a “neutral” prosecutor. They had accused Michelle Welch, the lead prosecutor, of intimidating witnesses and threatening them with retaliation if they talked to anyone other than state officials.
“I have not tampered with witnesses. I haven’t threatened a witness,” Welch said. “They waited for this motion to disqualify because they’re not happy with the verdict.”
The judge sided with Welch. “I do think that the requests are asking the court to impose a drastic remedy for something with a high burden of proof,” he said.
Russell scheduled another hearing for June 10, when he said he will hear arguments about the costs of caring for 71 animals that are in the county’s custody—and who will pay.
Background
In a six-day trial last month, a jury decided that 71 animals had been cruelly treated, but 29 other animals would be returned to the zoo because they had received adequate care.
The jury decided that the abused animals included four giraffes that have remained at the zoo since Dec. 6, when state police conducted a raid and seized 99 animals, including one that later gave birth. The giraffes were left behind at the zoo because they were too difficult to move.
Russell also rejected a defense motion to set aside the jury’s verdict.
The defense lawyers had wanted the judge to allow Gretchen Mogensen, the daughter of the zoo’s owners, to testify during last month’s trial. But they forgot to include her on the witness list given to prosecutors.
“They omitted her. It’s their mistake,” Welch said. “Discovery orders have to mean something, judge.”
In other motions filed before the hearing, the zoo’s owners, Debbie and Karl Mogensen, questioned the accuracy of prosecution witnesses’ portrayal of the treatment of the animals and conditions at the zoo.
Defense lawyers’ statements
Defense lawyers Erin Harrigan and Aaron Cook took issue with prosecution witnesses who described “deplorable” conditions at the zoo.
“The County’s witnesses repeatedly testified to facts that directly contradicted the County’s own photographic evidence and the testimony of their other witnesses,” Harrigan and Cook wrote. “As such, this testimony was not just inherently incredible, it was plainly false and wrong.”
Harrigan and Cook said conditions appeared worse than they were. “One of the most critical facts adduced at trial was that employees of the zoo were not permitted to care for the animals, provide food and water, or clean the enclosures until after 1:00 p.m. on Dec. 6, 2023.”
Welch argued throughout the trial that the animals suffered in dirty and unsafe living conditions.
Cook and Harrigan argued in the filings that Gretchen Mogensen’s testimony would have been important to show the jury that the animals were well cared for.
“The strong preference in the law is that juries ought to be presented with all relevant and admissible evidence in order to make the best decision they can,” the defense attorneys wrote. “As a result, excluding relevant and admissible evidence as ‘punishment’ to counsel for inadvertent and non-prejudicial discovery violations is not appropriate.”
The county wants the Mogensens to pay nine months of the costs of caring for the 71 animals that were seized. But the Mogensens want the county to first provide a breakdown of the costs per animal.
Russell said he doesn’t want either side to file any more motions. But he wants both sides to file written objections, if they have any, to the cost breakdowns that county will submit.