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Appeals Court to look at Virginia Briard subpoenas

A district judge has agreed to ask a Minnesota Appeals Court for guidance on the issue of whether subpoenas were properly served in the Virginia Briard case.

District Judge Lisa Borgen ruled in June that the subpoenas had been properly served, even though they had been delivered to her husband and son.

Virginia Briard is accused of going on the run to avoid testifying at the first trial of her husband, Robert. The Briards own a well-known hog farming operation near Frazee.

Virginia Juanita Briard, 63, of 38501 County Road 56, Frazee, faces six felony counts of contempt of court -- one count for each day in December she failed to appear at her husband's criminal sexual conduct trial.

Briard was acquitted by a Becker County jury on Dec. 17 on first- and second-degree criminal sexual conduct charges involving a girl under the age of 13. Those incidents allegedly occurred in the 1980s.

On June 18 a jury found him innocent of second degree criminal sexual conduct for an incident involving a girl under the age of 13 that allegedly occurred in the summer of 2005.

Three remaining gross misdemeanor charges were dismissed by the Becker County Attorney's office earlier this month.

Virginia Briard's trial had been set for Sept. 22, but Borgen's decision to hand the case to the appeals court puts that trial in limbo. It's not unusual for an appeals court decision to take several months.

In June, after several weeks of deliberation, 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.

Borgen on Thursday told the attorneys at Virginia Briard's pretrial hearing that she would certify a question of law to the Court of Appeals, and gave them a week to submit a memorandum on what they think the question should be. She will then decide what question she will certify to the Court of Appeals.

She took no action on three other defense pretrial motions: one to drop the first charge, since it relates to a subpoena for the original trial date. No trial was held that date, so no contempt could have been committed, the defense argued, adding that there is no proof that Virginia Briard didn't show up for court that day.

The second motion was to dismiss counts 3-6, arguing that since they all relate to the same incident of contempt, there should be a single charge, not one count for each day Briard failed to appear at the trial.

The defense referred to a 1952 case in which a witness refused to name names of suspected communists and was found in contempt 11 times, one for each time in her testimony she refused to provide a name.

She was given a year in jail on each count, but an appeals court later reduced it to a single contempt charge.

The defense also asked the court to rule on a previous motion for a change of venue.