Grounds for Appeal Seen in Verdicts on Mauling

One day after a San Francisco lawyer was found guilty of murder in the fatal dog mauling of her neighbor, law experts said Friday that there may be strong grounds for an appeal.

The case included weak evidence for the murder charge, inflammatory testimony about the defendants’ connection to the Aryan Brotherhood prison gang, an ineffective defense attorney and a judge who threatened to throw that attorney in jail for making an improper objection, several lawyers and law professors said.

The murder conviction was the first in a dog attack case in California. It could result in a state prison sentence of 15 years to life for Marjorie Knoller, whose dogs attacked 33-year-old Diane Whipple in a hallway of their Pacific Heights apartment building Jan. 26, 2001.

Unlike two other dog-related murder convictions in other states, there was no evidence presented at trial that Knoller trained her Presa Canarios to attack or that she set them on the victim.

In Ohio, a defendant was convicted of murder in 1993 after he knocked his wife unconscious and set his pit bull on her.

In Kansas, a woman was convicted of murder in 1998 after prosecutors proved that she trained her Rottweilers to be aggressive and failed to keep them restrained. Her dogs mauled a young neighbor to death.

“This is night and day,” said professor Franklin Zimring, who teaches criminal law at UC Berkeley’s Boalt Hall School of Law.

In the Ohio and Kansas cases, Zimring said, the defendants wanted the dogs to kill. But in this case, he said, “Nobody has argued that this defendant [Knoller] wanted to kill anybody with those dogs.”

Knoller’s guilty verdict sets a precedent that dog owners can be convicted of murder even if they did not intentionally use their dogs as weapons.

Legal Distinctions and Jury’s View

Knoller and her husband, Robert Noel, who was not present during the attack, were convicted of involuntary manslaughter and keeping a mischievous dog that kills. Noel faces four years in state prison.

Prosecutors maintained through the five-week trial in Los Angeles Superior Court that Knoller and Noel had seen their dogs act aggressively more than 30 times before the fatal attack.

Defense attorneys said their clients did not know their dogs were dangerous and couldn’t have anticipated the mauling.

The trial included a gang expert who testified that Knoller and Noel were associates of the Aryan Brotherhood prison gang and that they helped inmates at Pelican Bay State Prison run an attack dog breeding ring.

Knoller’s defense attorney, Nedra Ruiz, presented her case in a dramatic fashion, even getting down on the floor to reenact the fatal mauling.

She also made two objections during prosecutors’ closing arguments, prompting the judge to order her to take a seat and threaten to throw her in a holding cell if she stood up again.

But jurors said they convicted Knoller of murder because she should have known her dogs could maul someone to death.

“She knew what these dogs were capable of,” jury foreman Don Newton said Friday. “This is a very arrogant woman who over and over was warned and brushed off the warnings.”

Newton said jurors concluded that Knoller and Noel should have taken the Presa Canarios to obedience training because that breed of dog is naturally aggressive.

Knoller also should have put a muzzle or choke collar on the dogs that afternoon, he said.

“Marjorie knew she couldn’t control the dog, and she either took the dog out or let the dog loose,” Newton said.

A few jurors considered the possibility that Knoller had, in fact, allowed the dogs to attack Whipple.

Deliberations Frame ‘Blatant Disregard’

Because they didn’t believe Knoller’s testimony during trial, the jurors went around in a circle and gave their version of what they thought occurred in the hallway, Newton said.

The issue was not about dogs to the jurors, 10 of whom had owned dogs in their lives, Newton said, but that Knoller had a “blatant disregard for human life.”

Knoller testified that she had tried desperately to save Whipple’s life by trying to shield her from the dogs.

“This case establishes that if you own a big, powerful dog, you could go to jail for the rest of your life because you should have known the dog could have inflicted injury on someone,” said Los Angeles attorney Kenneth Phillips, who represents dog-bite victims.

“Dog owners better get the message that they have to keep their neighbors safe from their own dogs,” he said.

Zimring said the murder verdict took him by surprise: “Second-degree murder, I think, is a very problematic stretch.”

He said that because there was no evidence of implied malice--that is, that Knoller had a conscious disregard for life--the prosecution’s case hinged on the seriousness of Whipple’s mauling and the defendants as unsympathetic figures.

Zimring also said the jurors’ murder verdict was “creating a moral equivalence between conduct that may be dangerous but doesn’t intend deadly harm, and people who are trying to take lives or risk lives intentionally.”

Dale Sanderson, a deputy district attorney in Santa Clara County, disagreed, saying he did not believe there were strong grounds for appeal. “The evidence speaks for itself, and the verdict is appropriate,” he said.

Sanderson prosecuted a case in 1989 in which a defendant, Michael Berry, was charged with murder, but the jury returned a verdict of manslaughter.

Berry’s pit bull killed a toddler who wandered onto Berry’s property. But the dog was chained in the yard and Berry had warned the toddler’s parents about the dogs’ viciousness.

Berry’s defense attorney, Phil Pennypacker, said he thought the Knoller case did not rise to the level of murder.

“[Knoller] lost control of a dog who weighed many, many pounds and was very, very muscular,” he said. “It’s like punishing somebody for not thinking through the consequences of what could have happened.”

If appellate courts affirm Knoller’s murder conviction, Sanderson said the verdict may prompt prosecutors elsewhere to charge dog owners similarly.