Friday, June 1, 2007
Page 1
S.C.: Judge Must Reconsider New Trial Order in Dog Mauling Case
By KENNETH OFGANG, Staff Writer
A defendant may be convicted of second degree murder, on an implied malice theory, if the defendant knowingly engages in conduct that endangers the life of another and death results, the state Supreme Court ruled yesterday.
In a unanimous decision, the justices held that a San Francisco Superior Court judge abused his discretion in awarding a new trial to the attorney convicted of second degree murder after her dog killed her Pacific Heights neighbor.
Judge James Warren, who has since retired, “based [his] ruling on an inaccurate definition of implied malice, and ...inappropriately relied on the prosecutor’s failure to charge codefendant [Robert] Noel with murder,” Justice Joyce L. Kennard wrote for a unanimous court.
First District Ruling
A trial judge is said to act as a “13th juror” in deciding whether to grant a new trial. But it is an abuse of that broad discretion, Kennard explained, “if the trial court based its decision on impermissible factors...or on an incorrect legal standard.”
A First District Court of Appeal panel last year ruled that Warren was mistaken in holding that to be guilty of second degree murder based on implied malice, Knoller must have known that her conduct in failing to train, supervise, and/or muzzle the 120-pound Presa Canario “involved a high probability of resulting in the death of another.”
The panel said it was sufficient to show that the defendant knew her conduct risked causing death or serious bodily injury.
At the same time, the Court of Appeal affirmed the convictions of Knoller and her husband, 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 dog in the hallway of the apartment building where the victim and defendants lived.
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 were placed on interim suspension by the State Bar as a result of the conviction. Noel was later disbarred for failing to comply with a rule requiring that a suspended attorney notify clients, co-counsel, and adverse counsel of the suspension, make clients’ papers and properties available for return, refund unearned fees, and file an affidavit of compliance.
The State Bar Court said Noel did not file the affidavit and did not respond to its inquiries. Knoller resigned from the State Bar rather than contest disciplinary charges.
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.
Implied Malice
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.”
It was the only thing she said during her entire testimony—in which she claimed that she tried to protect Whipple and that the victim startled the dog by striking Knoller as she attempted to do so—that the judge believed, he said in granting the motion for new trial.
He also said she was no more culpable than her husband, another point as to which the Court of Appeal disagreed. The Supreme Court allowed Noel’s conviction to stand, and granted Knoller’s petition for review solely as to the issue of whether the new trial order should be upheld.
With respect to implied malice, Kennard said that neither Warren nor the Court of Appeal panel got the legal standard right.
The trial judge “set the bar too high” in requiring that Knoller have a “high probability” of knowing the dogs were likely to kill, Kennard wrote. But the justice also said the appeals court “set the bar too low” because Knoller should have known the dogs were at risk to cause great bodily harm.
The justice further concluded that Knoller was more culpable than Noel because “[t]he immediate cause of Whipple’s death was Knoller’s own conscious decision to take the dog Bane unmuzzled through the apartment building, where they were likely to encounter other people, knowing that Bane was aggressive and highly dangerous and that she could not control him.”
The lawyer who argued the appeal for the state said she would press for the reinstatement of Knoller’s murder conviction.
“Her conduct was heinous and egregious and was one of the worst second-degree murders I have ever seen,” Amy Haddix told The Associated Press. “We are very determined for the sake of the victims.”
Dennis Riordan, who represented Knoller on appeal, did not immediately return an AP phone call for comment.
Copyright 2007, Metropolitan News Company