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Virginia briard case: Appeals court ruling is win for defense

Virginia Briard

In a big break for the defense, a Minnesota appeals court has ruled that subpoenas were not legally served in the Virginia Briard case.

Briard, 64, of 38501 County Road 56, Frazee is charged in Becker County District Court with six felony counts of contempt of court.

She is accused of failing to appear to testify at the criminal sexual conduct trial of her husband, Robert Briard, in December of 2008.

Prosecutors sought her testimony because her husband had allegedly made "certain admissions" to her regarding the accusations against him, according to court records. The court earlier ruled that the right not to have to testify against a spouse did not apply in this case.

Robert Briard was later acquitted of all felony charges, in two separate jury trials.

Virginia Briard is represented by attorney Earl Gray of St. Paul, who contended that two subpoenas served to compel her appearance in court were not valid: Law enforcement officers served one on her husband and one on her son.

The defense argued that the subpoena served on her husband was not valid because he was not a person of "suitable discretion," as required by the law.

It argued that the subpoena served on her son, Ashley, was not valid for the simple reason that he did not live at the Virginia Briard residence, as required under the law.

Because there was very little case law regarding subpoenas in criminal cases, the defense and prosecution agreed that District Judge Lisa Borgen should put the question to the appeals court -- reasoning that the case would almost certainly end up there anyway, and the court's decision would essentially make or break the case for either side.

In an 18-page decision, the appeals court on July 13 released its answer to the certified questions.

Here's what the state law says: "A subpoena may be served by the sheriff, a deputy sheriff, or any person at least 18 years of age who is not a party.

Service of a subpoena on a person must be made by delivering a copy to the person or by leaving a copy at the person's usual place of abode with a person of suitable age and discretion who resides there." (Italics added).

The appeals court dismissed the district court's contention that civil case law should apply in the absence of criminal case law regarding subpoenas, saying the stakes were too high to be fair to a defendant in a criminal case.

"The liberty interest at stake in defendant's criminal proceedings limits the extent to which the civil cases can be deemed instructive," the appeals court said in its decision.

The first subpoena was served Oct. 10, 2008 by Becker County Sheriff's Investigator Scot Blaine, who left a copy of the subpoena with Robert Briard at the couple's farm home.

Robert Briard told Blaine something to the effect that he was "not getting involved in that." Blaine explained to him that he had been served and asked what he should do with the subpoena. Robert Briard pointed to the doormat outside of the door and then closed the door without picking up the subpoena.

The subpoena directed Virginia Briard to appear as a witness in district court on Oct. 27 through Oct. 30. The trial was delayed and scheduled to begin on Dec. 8

The heart of the defense's argument was that Robert Briard was not a person of "suitable discretion" because of his "defendant" status in the criminal case in which the subpoena was issued.

Gray argued that "it is easy to imagine how a criminal defendant having to give his or her spouse a subpoena compelling her appearance to testify against the defendant, or even informing the spouse that the subpoena had been delivered, would create not only acrimony, but also a situation ripe for violence."

Gray also argued that the husband's defendant status "creates too great a likelihood that the subpoena will not get to the person named in it, or that if it does, it will occasion acrimony if not outright violence."

The appeals court agreed.

On Dec. 3, 2008, the state again attempted service upon Virginia Briard, this time by Becker County Sheriff's Investigator John Sieling.

He left the subpoena with the Briards' son, Ashley, who refused to take the subpoena, told Sieling he was not going to talk to him, and then walked away towards a building.

Sieling informed Ashley that him that he had been served on behalf of his mother. Sieling then stated that he was leaving the subpoena in the back of Ashley's truck. Sieling did not recall it being windy, and it was gone when Sieling checked a while later.

The appeals court ruled that it was not enough that Ashley essentially ran the hog farm and was there every day, or even that a Frazee phone phonebook listed the farm as one of his residences.

His actual residence was a farmhouse less than a half mile away, where he had lived for many years with his wife and children.

"The plain language of Minn. R. Crim. P. 22.03 provides that substitute service is made upon a person who resides in the same abode as the intended party," the appeals court said. "The record clearly reflects that Ashley did not reside with his parents..."

Becker County Attorney Mike Fritz said no decision has been made on how to proceed with the case in light of the appeals court ruling.

"We're reviewing the available options," he said. "No decision will be made until after we have time to fully digest the opinion --it just came out yesterday morning," he said Wednesday.