One of the three female giraffes transported from Natural Bridge Zoo in May died during transportation, and its death has been added to the ongoing criminal investigation into the zoo.
Cardinal News reported last week that the Attorney General’s Office confirmed that the giraffe, named Valentine, was removed from the zoo on May 22 and loaded into a trailer bound for the Georgia Safari Conservation Park. The transportation team checked on Valentine during a stop after crossing into South Carolina and noted “no sign of distress or discomfort,” according to a statement from Shaun Kenney, a spokesperson for Attorney General Jason Miyares. When the team checked on her again after crossing into Georgia, Valentine was found to be deceased.
A preliminary necropsy performed at the University of Georgia ruled out stress from the move as the cause of death, but noted two injection sites “of a drug apparently administered by the Natural Bridge Zoo.” A toxicology test was requested, which is being conducted by Michigan State University. The results of the tests won’t be available for another two to three weeks.
The statement from the Attorney General’s Office also said that a post on the Natural Bridge Zoo’s Facebook page on May 22 said that Valentine’s health was “rapidly declining” and that Gretchen Mogensen, one of the owners of the zoo, spoke with the veterinarians and the investigator overseeing the transport to inform them of Valentine’s condition. She also said that the night before she had given Valentine “10 cc of Banamine by polesyringe.” Banamine is – according to Merck Animal Health, the company that produces it – “the pioneer non-steroidal anti-inflammatory drug (NSAID) approved for horses in the United States.”
The death of Valentine is now part of an ongoing criminal investigation into the zoo, which also includes investigating the disappearance of two baby giraffes after the mothers were found to no longer be pregnant during an inspection in April, with no signs of the babies at the zoo.
The other two female giraffes were also transported from the zoo in May and both arrived safely at the Georgia Safari Conservation Park, where they joined Jeffrey, the male giraffe who was transported from the zoo last October.
Appeal Continues
As the criminal investigation is ongoing, Karl and Debbie Mogensen’s appeal of the outcome of the jury trial in the spring of 2024 is working its way through the Virginia Court of Appeals, with the opening brief from Aaron Cook, the Mogensens’ attorney, being filed with the court in June, and the response from Senior Assistant Attorney General Michelle Welch being filed earlier this month.
In his opening brief, Cook cites four assignments of error as the basis for the appeal: that the trial court erred by allowing the government to proceed with the forfeiture of “animals in a zoological facility regulated, inspected and permitted by the USDA”; it erred when it denied a motion by the Mogensens’ attorneys for an evidentiary hearing on a motion to suppress evidence seized at the zoo; it erred when it “excluded the testimony of … Gretchen Mogensen at the trial of the case”; and that the evidence presented at trial was “insufficient … to sustain the jury’s findings of cruelty or inadequate care that rendered each subject animal in such a condition as to constitute a direct and immediate threat to its life, health, or safety.”
On the issue of the forfeiture, Cook acknowledged that the statute under which the case was tried (code section 3.2-6569) allows for the seizure of animals that have been either “abandoned or cruelly treated” or “denied adequate care” and applies not just to private owners but also to “every public or private animal shelter or other releasing agency, and every foster care provider, dealer, pet shop, exhibitor, kennel, groomer and boarding establishment.”
He went on to argue that in code section 3.2-6503, the General Assembly provided an exemption within the statute for USDAlicensed exhibitors such as the Natural Bridge Zoo – which is “licensed and regulated” as a Class C Exhibitor by the USDA – and the Mogensens were “not subject to [the code]’s requirement to provide adequate care and the animals are not subject to a … hearing to determine whether adequate care was provided.”
“Animals in zoos regulated by the USDA are subject to regular and thorough inspections and detailed federal regulations,” he argued. “In addition, the Virginia Department of Wildlife Resources is also involved with regulating zoos with regard to the importation and sale of certain animals … as well as the transportation and sale of endangered species. … By contrast, the process Title 3.2’s Comprehensive Animal Care Chapter contemplates the seizure of companion or agricultural animals by a county animal control officer – not exotic or endangered animals found on display in a USDA- regulated zoo. If a Circuit Court finds that an animal is to be forfeited after a … hearing, the Circuit Court must order the animal become the property of the local public animal shelter.
“Surely the General Assembly was thinking of dogs and cats and horses and the occasional pet python and did not contemplate this provision to be used in the forfeiture of gibbons, servals, and giraffes – or a hundred different zoo animals, some very valuable or others endangered and unable to be lawfully sold – passing through the public animal shelter,” Cook continued. “Thus, a plain reading of these statutory provisions is clear: the General Assembly did not intend to permit the government to proceed under Virginia Code § 3.2-6569 to seize and forfeit zoo animals from a USDA-regulated zoological facility on the basis that the owners provided inadequate care.”
In her response, Welch argued that the code under which the animals were seized doesn’t provide for any exemptions for any animal owner and that the authority to seize an animal “is not based on who owns the animal or what licenses they have.”
She further argued that under section 3.2-6569 “the question before the court is whether the animal has been abandoned, cruelly treated or ‘deprived of adequate care,’ as that term is defined in [section] 3.2-6500,” and if the General Assembly had intended for code section 3.2-6569 to refer to and include the exception in section 3.2-6503, “it would have said so.”
She also argued that the argument regarding the exemption was “waived” because the Mogensens didn’t raise the issue during the trial and “the trial court never had an opportunity to rule on this new argument that animals can only be seized from a USDA-licensed exhibitor if the government can prove cruel treatment.”
- On the issue of the denied evidentiary hearing, Cook, the Mogensens’ attorney, argued that the ruling by Judge Christopher Russell in Rockbridge County Circuit Court to deny the hearing “was based on an incorrect reading of the law in Virginia and of the United States Supreme Court” and that the hearing would have allowed them to present evidence that the affidavit that led to the initial search and seizure warrants “contained several material deficiencies and omissions … that erode all probable cause,” that the affidavit “failed to provide a particular basis for seizing the animals and evidence listed, and was an unconstitutional general warrant,” and that it “failed to establish the reliability and credibility of confidential informants listed as providing key information for probable cause.”
Specifically, Cook argued that Christine Boczar, a sergeant with the Powhatan County Sheriff’s Office who was the affiant for the search warrants for the zoo, had not disclosed that the confidential informant who had initially provided information that led to Boczar’s investigation was an employee of People for the Ethical Treatment of Animals (PETA) who was working at the zoo “as an undercover investigator for his true employer … an organization campaigning and working for the closure of [the zoo].”
He also pointed to a failure to disclose that Amy Taylor was an investigator with the Attorney General’s Office while also “working full time leading an animal rights activist organization.” Boczar’s “total failure” to both establish the confidential informant’s credibility and to disclose Taylor’s bias, Cook argued, are “fatal to the warrant in this case and the evidence should be dismissed.”
Cook also argued that Boczar had “narrated her observations” from two visits she made to the zoo while “posing as a member of the public” in such a way that “deliberately misled the Powhatan Circuit Court Judge.”
He specifically cited several examples of the affidavit presenting “a much different and more dire picture of conditions at [the zoo] than her notes indicate, to the point that the affidavit is clearly misleading to the issuing judge and at times flat-out false.”
Some of the discrepancies he noted include the affidavit describing as having “no food or hay present” during her first visit, but not including the fact that the zebras were eating hay during her second; describing a porcupine as “pacing” near the door of its enclosure in the affidavit while describing it as “walking” in her report and describing the enclosure was “nice” and contained “fresh food and water” during both of her visits; and stating in the affidavit that the lemurs did not appear to have any food available, while her notes during both visits indicate that food and water was present.
He further noted that Boczar had “previously been found to have made material representations to a judge to obtain a warrant,” which he said she failed to disclose to the judge, and that she had failed to disclose that the Mogensens and the zoo were regularly subject to unannounced inspections by the USDA, and noted that two such reports – one from January 2023 and the other from June 2023 – had each noted only one “non-critical” violation.
Cook further argued that Boczar had “made no showing of any specific instance of cruelty in the affidavit” and had instead made “conclusory, unsubstantiated statements, untethered to any standard of care for any of the zoological animals listed, and then used those conclusory allegations to demand the seizure of an alarming and overly broad field of evidence, records and documents.”
Welch argued in her brief that the “validity of the search warrant is not at issue in this appeal, but the search warrant was valid regardless,” and notes that several of the assertions in Cook’s arguments are “false,” specifically citing the example of Taylor’s conflict of interest and pointing out that the affidavit does identify Taylor as “a source of information and states that she works for the Virginia Office of the Attorney General.”
Welch also argued that the exclusionary rule of the Fourth Amendment doesn’t apply in this case as it is a civil animal seizure, not a criminal one.
For the testimony of Gretchen Mogensen, Cook acknowledged that she had been “inadvertently” left off of the defense’s witness list, but that the defense had alerted Welch that Mogensen was going to testify “by email prior to court on March 4.”
In his brief, Cook noted that she had testified and been subject to cross examination during an earlier hearing in Rockbridge County General District Court and pointed out that she had been mentioned by many of the government’s witnesses during their testimony. Mogensen’s testimony would have served “to counter the facts put forward by the government” and called the “wholesale exclusion” of her testimony a “drastic remedy” and “an abuse of discretion.”
“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,” he argued. In this case, however, the government’s position before the trial court when challenged to demonstrate prejudice was: ‘It is a surprise, and she’s just wrong that I have to show [actual] prejudice. They didn’t disclose it. It shouldn’t come in.’ Indeed, the Court made no finding of prejudice against the government in the record, because there was none.”
Welch argued that the defense “egregiously violated the discovery order on the last day of trial” by waiting until 2:04 a.m. on the last day of the trial to inform the government of the intention to call Mogensen as a witness, and by not including her in their witness list or mentioning her during the jury selection process or their opening argument. She also noted that the issue had been ruled on three times: twice during the trial and once during a posttrial motion.
“The court stated [during the motion hearing] that it was not commenting on whether the omission was intentional,” she argued. “Rather, the court emphasized the lateness of the disclosure, that Gretchen was also left out of voir dire, and that ‘the county had a right to go through this trial thinking that the [Mogensens] were just not going to call [Gretchen].’ The court concluded that ‘given all of the circumstances[,] allowing [Gretchen’s] testimony at the time requested, I believe would have constituted unfair, undue material prejudice to the opposing side. And that was the basis for my ruling at trial. I’m not inclined to reconsider that.’” ---
For his final point, Cook argued that the evidence presented at trial was “insufficient” to sustain the verdicts from the jury regarding whether the conditions constituted “a direct and immediate threat to its life, health or safety.”
The majority of the evidence used to argue the conditions of the animals at the zoo, he argued, was from the day of the seizure during which the zoo staff was prevented from entering the zoo and doing their daily routine of feeding and caring for the animals.
Most of the conditions that the state presented as evidence of cruelty, including a lack of food and the smell of ammonia in some enclosures, were due to this disruption of the daily routine and were not indicative of a larger pattern of behavior. He also argued that no proper measurements of the size of the animal’s enclosures were submitted into evidence to prove that the enclosures were insufficient for the animals.
Welch argued that the conditions of the animals was “worse that could reasonably be explained by overnight accumulation or the delayed morning cleaning,” and that the size of the enclosures “is contextual and the [state’s] experts were not required to measure the habitats.”
She also argued that the witnesses’ testimony was “overwhelmingly consistent and credible and that the evidence presented at trial, “when considered as a whole, shows an immediate threat to the health of the animals.”
Cook has until July 31 to file a response to Welch’s brief with the court. After receiving it and reviewing all of the documents, the court will either make a ruling based on the arguments in the briefs or set a date for oral arguments.
