Mogensen Refuses To Disclose Location Of Giraffe Calves
After being found guilty of contempt of court in September for failing to disclose the location of two giraffe calves born at Natural Bridge Zoo earlier this year, Gretchen Mogensen, one of the owners of Natural Bridge Zoo, was given a choice – either turn the calves over to the state by noon on Oct. 29 or report to Rockbridge Regional Jail to serve a sentence of 100 days.
After motions to stay the judgment were denied by both Rockbridge County Circuit Court and the Virginia Court of Appeals, Mogensen made her choice, reporting to the jail to begin serving the sentence at noon last Wednesday.
Anthony Anderson, Mogensen’s attorney, filed the motion with Rockbridge County Circuit Court on Oct. 16 to stay the judgment of Judge Christopher Russell until the case had gone through the appellate court. He filed the same motion with the Court of Appeals on Oct. 21.
In the motion, he argued that Mogensen was in a “catch-22” situation where she “can’t deliver the giraffes without incriminating herself in [an] underlying criminal investigation.” Concerns over Mogensen potentially incriminating herself were also raised at the Sept. 24 hearing, with Mogensen ultimately choosing not to testify.
“If [she] were to acknowledge facts of the existence of the alleged offspring, or as ordered, deliver the offspring … such speech and actions would be used against her in a criminal prosecution for the very allegations which give rise to the show cause,” Anderson argued in his motion. “Without an appellate determination of these constitutional issues, [she] must either incriminate her- self or serve 100 days in jail. A stay pending appeal is vital to protect [her] constitutional rights.”
In her argument against the motion, Senior Assistant Attorney General Michelle Welch acknowledged that Mogensen had the right to not testify at the hearing and to not incriminate herself through any testimony she may choose to give, but argued that her risk of self-incrimination at the Sept. 24 hearing was not greater due to the existence of a criminal investigation than it would be if such an investigation was not already underway. Unless there was an agreement for immunity in place, any incriminating statements made on the witness stand could result in a criminal investigation if one did not already exist, she wrote.
Welch went on to argue that, since the hearing was concluded, any communication between the parties would be done through attorneys and that Mogensen would not have to speak directly to her or anyone else in the attorney general’s office, and that the only information that would need to be relayed in order to expunge the guilty charge and keep Mogensen out of jail would be the location of the calves and that “producing the calves is not self-incriminating.”
“There is no need to tell [us] how the calves got there, when they got there, or any circumstances around their movement,” Welch argued. “It is difficult to see how the calves’ current location, especially if conveyed through counsel for purposes of resolving this matter, could be used against Gretchen in a court of law.”
Welch went on to argue that delaying the resolution of the matter through the appeal process – which typically takes about year from filing the notice with the appellate court to the final ruling from the judges – would create problems for the state by making it more difficult to move the giraffes once they are located. Giraffe calves, she noted, are 6-feet tall when they are born and “double in size in the first year.” The calves in question are believed to be about 7 months old based on their estimated due date in April.
Welch further argued that granting a stay of the circuit court judgment “only facilitates Gretchen’s intention to delay turning the calves over to the [state] and causes the jail sentence to lose its coercive power.” She also called the efforts to delay turning over the calves “disrespectful,” not just to the court but to the “judgment of the jury of county citizens.”
Judge Russell denied the motion filed in circuit court on Oct. 23. On Oct. 24, Anderson filed a motion with the court of appeals for an expedited ruling on a motion to stay the judgment, which was denied on the morning of Oct. 29. Mogensen reported to the jail a few hours later to begin her sentence.
