Judge dismisses defense motions -- Virginia Briard trial set for September
A trial has been set for Sept. 22 in Becker County District Court for Virginia Juanita Briard, 63, of 38501 County Road 56, Frazee, after a judge rejected defense motions to dismiss six felony counts of contempt of court.
She is accused of going on the run to avoid testifying, and was charged with one count for each day in December she failed to appear at the criminal sexual conduct trial of her husband, Robert Briard.
On Thursday, after several weeks of deliberation, District Judge Lisa Borgen denied three motions for dismissal filed by Virginia Briard's attorneys, Earl Gray and Kent Marshall.
They argued that the charges should be dismissed for lack of jurisdiction -- because of the way the subpoenas were served -- and lack of probable cause, essentially arguing that there was insufficient evidence to bring the charges in the first place.
The first subpoena was served Oct. 10. Virginia Briard wasn't home, but law enforcement did speak with Robert Briard. He pointed to leave the subpoena on the front door mat. The officer set it on the doorstep and left.
The trial was postponed, so another subpoena was issued for Virginia Briard to testify in court Dec. 8-12.
Sheriff's investigator John Sieling brought the subpoena to the Briard farm Dec. 3. No one answered the door, but he did talk to a farm employee who directed him to the Briards' 36-year-old son, Ashley, who was driving a skid loader on the property.
Sieling told him he was there to serve a subpoena on Virginia Briard, but since she was not there, he would leave a copy with Ashley, who refused to touch the subpoena and told Sieling to leave the property.
Sieling told him he would leave a copy in the bed of Ashley's pickup truck. Later, he noticed the copy was gone. It was not a windy day.
State law dictates a subpoena must be served by providing a copy to the defendant "or leaving a copy at the person's place of abode with some person of suitable age and discretion then residing within."
The defense argued that Ashley didn't live there and Robert Briard, as a party in a criminal action, was wrongly used to serve the subpoena.
Borgen disagreed, writing that the defense "misconstrued" the law in its motion regarding Robert Briard and that law enforcement was properly used to serve the subpoena.
The purpose of the law, she wrote, is to make sure the defendant is aware of the requirement to appear in court.
"Clearly the defendant knew her husband was on trial as they live in the same home. Clearly Ashley knew his father was on trial as they work together every day, and clearly Ashley was aware his mother was the subject of a subpoena for the case," Borgen wrote.
Both Robert Briard and Ashley Briard -- who works at the farm every day, although he lives nearby -- fit the legal requirements and thus Virginia Briard was properly served, she wrote, citing several civil law precedents.
There were no criminal law precedents, she noted, but said it would be foolish not to follow civil law since the intent is the same.
Borgen also shot down a motion to dismiss on grounds of "probable cause." The defense argued there was insufficient evidence to support the charges.
"The evidence in this matter shows that on Oct. 25, 2006, the defendant (Virginia Briard) provided statements to law enforcement regarding her husband inappropriately touching their daughter when she was eight years old," Borgen wrote in a memorandum attached to her order. "Robert Briard was then charged with criminal sexual conduct in the first and second degree on Jan. 30, 2007."
Robert Briard unsuccessfully tried to prevent her testimony by claiming spousal privilege, which was denied prior to the trial.
Throughout Robert Briard's five-day criminal trial, the courtroom was filled with the Briards' family and extended family, many of whom traveled from out of state to attend, Borgen noted.
Virginia Briard could not be found by law enforcement who looked for her during her husband's trial.
"Eventually, long after the trial, she turned herself in because a warrant had been issued for her arrest," Borgen wrote. "At the time she turned herself in, her appearance had changed significantly -- changing her hair color and style."
Based on the evidence, Borgen added, probable cause exists for the charges. She denied the defense motion for dismissal.
The defense also tried to shift the case away from Judge Borgen to Judge Peter Irvine, who oversaw Robert Briard's December trial.
The defense argued that Irvine had already ruled on the first count against Virginia Briard, and so it was too late for the prosecution to remove him.
(The prosecution removed Judge Irvine and the defense removed Judge Joe Evans, both on Jan. 26).
"The defense contends that an in-chambers meeting was held between the attorneys and Judge Irvine at the time of Robert Briard's criminal trial relating to (Virginia Briard's) failure to appear at Robert Briard's trial," Borgen wrote.
The court gave the defense the chance to offer sworn testimony and evidence to support its contention, but it declined to do so, she noted, so that motion was also denied.
"There is nothing in the record that supports the argument that Judge Irvine made any ruling in (Virginia Briard's) criminal case," Borgen wrote.
And finally, the defense asked that the charges be dismissed on the grounds of "due process rights and vagueness," arguing that the statute under which she was charged is unconstitutionally vague.
Essentially, the due process argument was that Virginia Briard had not been properly served, so she did not have to comply with the subpoenas.
"It appears," Borgen wrote, "that because (Virginia Briard) believed Robert Briard was a party and could not receive her subpoena, she was not required to appear."
Virginia Briard also argued that "her son, Ashley Briard, did not live at her residence when he was served her subpoena, therefore she was never served and was not required to appear."
But the legal precedent cited by the defense "addresses none of the factual or procedural issues regarding service of process and fair notice that were raised in (the defense's) argument," Borgen wrote.
As far as the statute being unconstitutional, Borgen declined to rule on it because there was no evidence that the Minnesota attorney general had been notified, as required.
Virginia Briard's next court appearance, a pre-trial hearing, is set for Aug. 27.
Robert Briard was acquitted by a jury in December and was recently acquitted of a separate criminal sexual conduct charge by a jury in Foley.