The five defendants facing various criminal charges in connection with Natural Bridge Zoo were back in court Monday for a second round of motions hearings as the cases move closer to the trial dates scheduled for early 2027.
Judge Christopher Russell denied most of the motions he heard arguments about during the two-hour hearing Monday afternoon.
The one that he took under advisement – and will issue a ruling on later –was filed by the attorneys for Ashley Spencer and dealt with the language of the indictments for the two counts of conspiracy to forge or utter a public record that she is facing.
The original indictments returned by a Rockbridge County grand jury in February allege that Spencer conspired with Debbie Mogensen “or” Gretchen Mogensen.
At a motion hearing in June, Spencer’s attorneys filed a request for a bill of particulars related to the case, asking for, among other things, clarification on which of the Mogensens Spencer is alleged to have conspired against.
Russell shared the attorneys concerns over the use of the word “or” in the indictment and asked Assistant Attorney General Michelle Welch to provide clarification on that issue. In response, Welch submitted a request to amend the indictment to charge Spencer with conspiring with Debbie “and” Gretchen Mogensen.
Joel Swartz, one of Spencer’s attorneys, argued during Monday’s hearing that the original indictment was “unconstitutional” due to its ambiguity in listing co-conspirators. He also argued that the amended indictment charges a different crime than the one the grand jury indicted his client on and is not covered under the code section that permits amendments to grand jury indictments due to “defects of form” or in cases where there is “variance” between the allegations of the indictment and the evidence offered to support it.
Welch argued that the number of conspiracy charges was “not based on the number of conspirators” but rather the “number of conspiracies,” clarifying that Spencer was charged with one count of forging a public document, one count of falsely uttering a public document (passing the forged document as authentic), and one count of conspiracy to commit each of the aforementioned offenses.
As of noon on Tuesday, Russell had not issued his ruling on that motion. The attorneys for Debbie and Gretchen Mogensen, who are also each facing a pair of conspiracy charges with the same concerns as to the wording of the indictments, joined in support of Swartz’s motion but did not offer separate arguments in court. -Russell did rule on several motions filed by the attorneys for Spencer and Gretchen Mogensen related to whether Welch – and the attorney general’s office at-large – had jurisdiction to try the case at all.
In their motions, they cited two sections of the Virginia State code to support their arguments. Section 19.2-155 allows for commonwealth’s attorneys to step down from trying a case – and allows a special prosecutor to be appointed in their place – if there is a connection to the defendant “by blood or by marriage” or if the commonwealth’s attorney is unable to perform his duties due to “sickness, disability or other reason of a temporary nature.”
Neither of those criteria, the attorneys argued, were clearly stated in the orders that were entered to allow Welch to try these cases.
The attorneys also cited section 2.2-511, which lists the kinds of crimes that the attorney general’s office may prosecute in circuit courts, which does not include animal-related offenses or, as Spencer’s attorneys noted, cases related to forging public records.
Aaron Houchens, one of the attorneys for Gretchen Mogensen, argued that the language of the order, which refers to Welch and her co-counsel as “special assistant attorney,” gives her the authority of a special prosecutor, which serves different roles in trying a case in circuit court. He also noted that the order permits her to try any “related transactions” and “related cases” that may stem from the proceedings.
“This is carte blanche,” he argued. “This is not a special assistant. There’s no checks and balances here.”
Welch argued that orders similar to this one have been certified in circuit courts before and argued that “the fact that me and my team have animal expertise is enough” of a reason for her to be appointed to oversee these cases. She also accused the defense of “prosecutor shopping,” which Houchens denied.
Russell denied all motions related to Welch’s authority to try the case.
He also denied a motion by Spencer’s attorneys to dismiss the charges based on whether the certificate of veterinary inspection qualifies as a public document under the definition of the law (they argued it doesn’t meet the definition in the state code due to the certificate being for the records of government officials in Florida where the elephant was being taken, not for the records of officials in Virginia) due to the motion being “premature” as, essentially, a motion to strike, which is reserved for after the prosecution presents all of its evidence at trial.
Another motions hearing was scheduled for Nov. 16. Any motions for that hearing must be filed by Oct. 16 and responses to the motions filed by Nov. 6.
The first trial for these charges – for Karl, Debbie, and Gretchen Mogensen – is currently scheduled for 10 days, Feb. 8-22. Spencer’s trial is scheduled for March 8-9 and the trial for Mark Easley, the elephant trainer, is scheduled for March 2224.
