Dog Attack Preventable, Defense Suggests

A defense lawyer stunned a Los Angeles courtroom audience Thursday by suggesting that dog-mauling victim Diane Whipple’s partner could have prevented the fatal attack.

Whipple, who died after being attacked by two large Presa Canario dogs in January 2001, had previously been bitten by one of the dogs, but neither she nor her partner reported the incident, according to court testimony.

“Did you ever consider that had you made a complaint, Diane Whipple might be alive today?” defense lawyer Nedra Ruiz asked Sharon Smith, who was Whipple’s partner for seven years.

Smith glowered at Ruiz and shook her head in silence. Several members of the courtroom audience gasped.

After a momentary pause, Judge James Warren quietly asked, “Do I hear an objection?”

One of the prosecutors immediately objected. It was sustained, and Smith did not have to answer the question.

Outside the courtroom, Smith said the question was painful.

“I was shocked by her question and, frankly, deeply offended by it,” Smith said. “I had been questioned by her before, but I don’t think you can fully be prepared for something like this.”

Smith said she gets her strength from her memory of Whipple.

“I think about her every day,” she said.

Smith played a role in last year’s passage of legislation expanding the rights for gay and lesbian domestic partnerships when she testified before state legislators. The legislation gives same-sex couples the benefits and protections of traditional marriages.

Whipple, 33, a college lacrosse coach, was mauled by the two dogs, each weighing more than 100 pounds, as she tried to enter her sixth-floor San Francisco apartment on Jan. 26, 2001. One of the dogs, Bane, tore into her neck, and the other, Hera, ripped at her clothes.

Ruiz is defending one of the dog owners, Marjorie Knoller, 46, who was present during the attack. She and her husband, Robert Noel, 60, are charged with involuntary manslaughter and keeping a mischievous dog. Noel was not in the apartment building at the time of the attack.

Knoller also faces a second-degree murder charge and could receive a prison sentence of 15 years to life. Noel faces a possible sentence of four years.

Prosecutors allege that the couple knew their dogs were dangerous, and that Knoller didn’t do anything to prevent Whipple’s death.

The defense lawyers describe the attack as an unexpected, tragic accident and say Knoller was herself bitten and bruised as she tried desperately to save Whipple’s life.

The case is being tried in Los Angeles County Superior Court because of publicity in the Bay Area.

During her testimony, Smith spoke softly, mostly in short, single sentences. She was on the verge of tears when asked to tell about the day Whipple died.

Smith testified that she and Whipple planned to have dinner and go to a movie that night.

Smith spoke strongly about the defendants.

“They killed Diane. It was their dogs and it was their careless disregard for Diane’s life that caused her death.”

Smith said that she was not at home when the attack occurred, but added that she was with Whipple at a hospital when she died. That testimony prompted tears from several of her friends in the courtroom.

Assistant Dist. Attys. James Hammer and Kimberly Guilfoyle Newsom called Smith to the stand primarily to explain Whipple’s and Smith’s fear of the dogs, and to recount an incident in early December 2000 when Whipple encountered Noel and one of the animals as she was leaving the building.

“The dog lunged at her, and bit her in the hand,” Smith said, recalling Whipple’s account of the incident. “She said, ‘I told him, you need to control your dog.’ ”

Smith, 36, a regional vice president at Charles Schwab stock brokerage, said the incident frightened Whipple so much that whenever they encountered the dogs in the hallway, Whipple cowered in terror against the wall or even pushed Smith between her and the animals.

During cross-examination, Ruiz vigorously questioned Smith on why she and Whipple did not complain to the building owners.

“You took no action to remedy a situation where your life partner lived in fear?” Ruiz asked.

After Smith said they both decided to keep their distance from the dog, Ruiz continued with the line of questioning.

“You both decided not to make any complaint whatsoever about the fact Diane Whipple had been bitten?” Ruiz asked.

“I did not make a complaint,” Smith said. “I now wish I had.”

It was at that point when Ruiz asked whether Smith realized that Whipple might be alive had a complaint been filed.

Ruiz also questioned Smith on whether she would profit from a wrongful-death civil suit that Smith has filed against Knoller and Noel. Smith said any money from the suit would go into a foundation in Whipple’s name.

The question also cleared the way for Hammer to ask Smith why she filed the suit, prompting Smith to comment:

“They are responsible for taking Diane’s life, and I want to make sure they are held responsible.”

After the court proceedings Thursday, Hammer said Ruiz’s questioning seemed to imply that Smith was responsible for Whipple’s death.

One of Smith’s civil attorneys, Kate Kendell, called it “obscenely disrespectful.”

Michael Cardoza, another civil attorney for Smith, said, “It crossed over the line....And it deeply scarred my client. But I think it shows exactly what the defense in this case is about--don’t take responsibility yourself. Blame everybody but yourself.”

Ruiz could not be reached for comment outside court.

Jury consultant Philip K. Anthony said Ruiz may have asked the question to divert jurors’ attention from Smith’s testimony. That strategy, however, probably has a 50% chance of succeeding without offending the jury, he said.

“The testimony is so dramatic and so compelling that [the defense attorneys] might as well try something shocking because they know they can’t do any worse than they are already doing,” said Anthony, chief executive officer of DecisionQuest, a national trial-consulting firm.