Metropolitan News-Enterprise


Friday, May 6, 2005


Page 1


C.A. Reverses New Trial Order in Mauling of Woman by Lawyers’ Dog


From Staff and Wire Service Reports


An order granting a new trial to a San Francisco lawyer convicted of second degree murder after her dog mauled a neighbor to death was overturned yesterday by the First District Court of Appeal.

Div. Two held that San Francisco Superior Court Judge James Warren used an incorrect standard when he ruled there was insufficient evidence of implied malice to support the murder conviction. The panel stopped short of reinstating the conviction outright, but sent the case back to the trial court for reconsideration.

At the same time, the panel affirmed the convictions of Knoller and her husband, Robert Noel — also a lawyer — on charges of involuntary manslaughter and ownership of a mischievous animal causing death. Noel, unlike his wife, was not present when Diana Whipple, a college lacrosse coach, was killed by the 120-pound Presa Canario in the hallway of the Pacific Heights apartment building where the victim and defendants lived.

Defendants Paroled

Warren sentenced Noel and Knoller to four years in prison in 2002. Both were subsequently paroled, with Noel living in Solano County and Knoller in Florida; parolees are not allowed to share a residence and it is not clear whether the couple is still married.

Both are under interim suspension from the State Bar as a result of the conviction. In addition, Noel is ineligible to practice due to nonpayment of bar dues and Knoller for lack of MCLE compliance, according to the State Bar.

The defendants said they were keeping the canines on behalf of a state prisoner, who was a white supremacist accused of running an attack dog circuit from prison. The two eventually adopted the prisoner as their son.

Jurors in Los Angeles — the trial was moved because of extensive pretrial publicity in San Francisco — found the couple guilty on all counts. But Warren, while expressing incredulity at Knoller’s claim that she did not know the dog was capable of killing, found that she did not subjectively know “that her conduct was such that a human being was likely to die.”

He also said she was no more culpable than her husband.

But Justice James Lambden, writing for the Court of Appeal, said it was error to consider relative culpability as a factor in granting a new trial and that the correct standard for evaluating evidence of implied malice was whether the defendant disregarded a known risk. ‘

Lambden strongly suggested that the evidence was sufficient to meet that standard. The defendant knew that the dog, Bane, was a “frightening and dangerous animal: huge, untrained and bred to fight.” He cited testimony regarding at least 11 instances in which the dogs growled, lunged or attacked others, including nearly severing Noel’s finger.

‘13th Juror’

But the trial judge, not the appellate court, must determine the issue because the trial judge sits as “the 13th juror” in ruling on a new trial motion, the justice explained.

The panel rejected Knoller’s claim that she was deprived of her constitutional right to counsel because Warren — about three-fourths of the way through the prosecutor’s closing argument — threatened to jail defense attorney Nedra Ruiz if she continued to object to arguments that she said misstated the evidence.

Justice Paul Haerle dissented on that issue, but all three justices agreed that Warren was correct in admitting — subject to limiting instructions — evidence that the defendants and their adopted son had ties to the Aryan Brotherhood and its dog-breeding scheme.

The evidence was relevant, Lambden explained, because it refuted defense claims that the couple only took Bane and two other Presas in because they were concerned about the dogs’ care.

Dennis Riordan, who replaced Ruiz as Knoller’s attorney prior to sentencing and handled her appeal, said the appeals court had set a new legal standard.“The majority states that a defendant’s disregard of a danger to life is no longer a required element,” Riordan said.

 He said the mental state for murder was now changed, no longer requiring a murder conviction when there was a “conscious disregard for human life.”

Now, Riordan said, a perpetrator not caring about somebody’s “bodily injury” could be guilty of murder. An example, he said, would be somebody killing somebody with a punch to the face — although that killer had no conscious disregard for life but was punching the person to inflict bodily injury.

“The majority in this case did not apply existing law,” Riordan said. He said he would ask the San Francisco-based appeals court to reconsider, and if they don’t, appeal to the California Supreme Court.

Former San Francisco Assistant District Attorney Jim Hammer, who became an instant celebrity during the televised trial, said he was grateful for the decision.

“It’s very emotional because this was one of the most preventable murders I’ve ever seen,” said Hammer, who is now a television legal analyst. “There was a meanness and sadistic quality to it. These people got a thrill because their dogs scared people.”

San Francisco County District Attorney Kamala Harris did not have an immediate reaction to the ruling, a spokeswoman said.

Attorney General Bill Lockyer’s office appealed Warren’s decision and was satisfied with the verdict.

“It basically stands for the proposition that the decisions made by juries should not be overridden by judges except in the most unusual circumstance, and this is not one of them,” said Lockyer spokesman Tom Dresslar.

The case is People v. Noel, A099250.


Copyright 2005, Metropolitan News Company