Dog Bite Law

In January 2001, two dogs killed Diane Whipple of San Francisco as she tried to enter her apartment. In the year that followed, shocking details emerged about the case, and criminal charges ranging all the way to murder were filed against the owners of the dogs, Marjorie Knoller and Robert Noel.

The guilty verdicts that were rendered in March 2002 did not finish the case. They rather were the start of its appellate phase, focusing upon the circumstances under which a dog owner should be found guilty of murder when her dog kills a person. In May 2007, the California Supreme Court sent the case back to the trial court for a new decision that most likely will start a fresh round of appeals. (To read about the latest decision, click here.)

Attorney Kenneth Phillips, the author of Dog Bite Law, appeared regularly on CNN, CourtTV, and network television, giving extensive commentaries on the criminal prosecution as it took place. This section of Dog Bite Law was referred to as "the bible of the trial" and is the most comprehensive source of information about it, containing summaries of trial testimony, names of witnesses, legal analysis of the charges, clarification of the appellate case, and much more.

• Overview of the crime
• Summaries of testimony
• The law
• Criminal law applicable to this case
• Civil law applicable to this case
• The legal proceedings
  • Pretrial and trial
  • Appeal
  • Sentences and penalties
• Observations
• The essence of the prosecutor's case
• The essence of the defense
• Why the jury voted guilty
• Knoller's motion for a new trial
• The trial judge defended his decision
• Sharon Smith's wrongful death claim
• Edyth Pamela Whipple-Kelly's wrongful death claim
• California grants new rights to domestic partners
• Can the conviction of Knoller be reversed on appeal?
• Finding meaning in Diane Whipple's death
• Further information

Overview of the crime

The crime

On January 26, 2001, shortly after 4:00 PM, San Francisco police and paramedics responded to calls from a Pacific Heights apartment building. They found a naked woman lying in blood, barely alive, her body bitten everywhere, bloody handprints covering the walls, and blood extending 4 feet up the walls and 30 feet own the hallway. Bits of clothing littered the floor, and a blood-soaked green nylon leash for a dog was lying nearby. A large dog was running loose, causing the officers to draw their guns. Nobody else could be seen.

Diane Whipple

The victim of this crime was Diane Whipple. She was a lacrosse coach, and lived in an apartment 50 feet from where the dogs lived. Whipple died that night at 8:55 p.m. at San Francisco General Hospital.

Bane and Hera

Bane and Hera were the Presa Canario dogs that savagely killed Whipple. Presa Canarios were originally bred for fighting, guarding and some herding in Spain's Canary Islands. The breed was near extinction by the 1950s and was brought back when it was mixed with mastiffs and others. Introduced in the United States in 1990, there are now more than 1,000.

The dogs were obtained for eventual sale through a web site called "Dog-o'-War." Seven such dogs first lived on a Trinity County farm, where they were not trained to fight, attack or kill. Then Bane and Hera lived for a couple of months in Los Angeles, and following that, inside the San Francisco apartment of Robert Edward Noel and Marjorie F. Knoller. The "Dog-o'-War" operation was shut down by prison authorities in April 2000.

Bane was euthanized the day of the attack. Following a dangerous dog hearing, Hera was ordered euthanized and was put down in January 2002.

Robert Edward Noel, Pacific Heights resident and attorney

Noel said the animals had no history of aggression and had seen the victim on several occasions without acting aggressive. "I've had 80-year-old ladies want to come up and pet them," he said. "The dogs have always been really people-friendly."

He was convicted of involuntary manslaughter and keeping a mischievous animal that killed a human being (a separate felony). He appealed the conviction. He was sentenced to four years in prison, and served a portion of his time; he was released in September 2003 because his sentence was reduced as a result of good behavior and performance of work duties in prison.

In February 2007, he was disbarred by the California State Bar, meaning that he lost his license to practice law in that state. He is on parole at the present time. His appeals were not granted and he has no further right to appeal.

Marjorie F. Knoller, attorney at law, wife of Noel, and the person who had "control" of the two dogs

One of the most unusual details of this death-by-mauling is that Knoller admitted begin present during it -- in no other death-by-dog in recent memory did the owner/keeper/controller make any such admission. She was convicted of the same charges as Noel, plus second degree murder.

At the conclusion of the trial, the judge threw out the murder conviction, and the district attorney filed an appeal of that decision. Knoller filed a cross appeal. She was sentenced to four years in prison.

She was released in January 2004, and is on parole at the present time. She resigned from the California State Bar in January 2007, meaning that she gave up her right to practice law in that state. Her appeal to the California Supreme Court is pending.

Summaries of testimony and list of persons who played important roles in the case

• Paul "Cornfed" Schneider, convicted killer and a reputed leader of a prison gang called the Aryan Brotherhood. Adopted son of Noel and Knoller. A search of his jail cell turned up a collection of photos -- featuring none other than Cornfed's new adopted "mom," Marjorie Knoller, posing nude. Schneider is serving time for a robbery conviction in Los Angeles County and attempted murder while incarcerated at Folsom Prison. He is currently serving life without the possibility of parole. He entered into a plea bargain agreement in September 2003 on charges of racketeering and drug smuggling.

• Dale Bretches, former cell mate ("cellie") of Schneider and participant in the so-called "Dog-o'-War" operation, a business devoted to breeding and selling Presa Canario dogs set up with outside help on a Trinity County farm, and shut down by authorities in April 2000. Their seven dogs were dispersed to friends and relatives of prison inmates. Two of the dogs were the ones that killed Whipple. "We were going to rid of that dog.... He never showed any signs of what we wanted out of the dogs.... We didn't think he responded to the training" -- these quotes were made during Sgt. Akin's interview of Bretches after Whipple died. Bretches is serving sentences for second degree murder and assault with a deadly weapon while incarcerated. He is currently serving life without the possibility of parole. 

• Kate Kendell, Michael Cardoza and Robert E. Lazo: Sharon Smith's attorneys in her wrongful death suit.

• Edythe Pamela Whipple-Kelly: Whipple's mother. She sued for wrongful death. The defendants included Noel, Knoller and the owners and management company of the building where Diane Whipple lived. No details of the settlement were made public.

• Ronald Rouda: Edythe Whipple-Kelly's lawyer.

• Terence Hallinan, District Attorney, City and County of San Francisco. 

• Police Sgt. Bill Herndon presided over the dangerous dog hearing, ordered Hera put to death, and banned Knoller and Noel from owning a dog for the next three years. 

• Pelican Bay Sgt. Joe Akin testified by affidavit that among Schneider's possessions he saw "numerous photos of Knoller posing nude" and "a letter disguised as legal mail addressed to Schneider" discussing "sexual activity between Noel, Knoller and the dog Bane."

• Judge Leonard Louie ordered Hera preserved for "physical and behavioral tests," at the request of prosecutors in the case. He also presided over the pretrial aspects of the case.

• Judge James Warren was the trial judge in the criminal case of People of the State of California v. Robert Noel and Marjorie Knoller.

• Lt. Henry Hunter supervised the investigation into the attack on Whipple. He said he was not surprised by the actions of Herndon. "The only people who said 'good doggie' was Noel and Knoller," he said. "Everybody else said 'bad doggie.' " 

• Vicky Guldbech, captain of field services for San Francisco Animal Care and Control. 

• Russ Heimerich, a spokesman for the California Department of Corrections.

• Dr. S. Marshall Isaacs, an emergency room physician who attended Whipple on the night of the attack. "There were no signs of life." 

• David Kuenzi of New York was visiting a friend in the building on the night of the attack. "She was screaming in a major way. I personally thought she was being mugged or raped."

• San Francisco Police Officer Leslie Forrestal. "There was shredded clothing, obviously a lot of blood. It was horrific." 

• Prosecutor James Hammer: in the Whipple criminal prosecution, was the lead prosecutor for the San Francisco District Attorney's office.

• Prosecutor Kimberly Guilfoyle Newsom: in the Whipple criminal prosecution, was the assistant prosecutor for the San Francisco District Attorney's office. Interestingly, she formerly was a Victoria's Secret lingerie model. 

• George G. Walker Defense attorney who briefly represented Noel and Knoller with regard to the criminal charges. One of Walker's first public statements was that "their [Noel and Knoller's] attitude about this case has tarnished them." He was replaced by a public defender, Bruce Hotchkiss, who is representing only Noel.

• Bruce Hotchkiss Noel's defense attorney.

• Jan Lecklikner, Deputy Public Defender. She was Knoller's defense attorney until August 21, 2001.

• Nedra Ruiz, attorney. She became Knoller's criminal defense attorney on August 21, 2001. She is the attorney who cried and crawled on the courtroom floor during the opening statements in February 2002.

• Rachel Boehm: an attorney who represents various members of the media. 

• Red Star Kennels  in Hudson, Wis. "We're the only training kennel in the United States" for Presa Canario dogs.

• Alex Vyatkin. Red Star Kennels owner. He said putting dogs in a chained environment -- the way Hera and Bane were reportedly kept -- is enough to "make them crazy." 

• Irina Vyatkin, co-owner of Red Star Kennel: "We have people who want weapons -- not dogs."

• Mac Harris, a New York breeder of Presa Canarios. "They want a pit bull on steroids," he said. "And these dogs can be just that if they're raised the wrong way."

• Andrew Tursi: the attorney appointed to represent Dale Bretches.

• Jean Donaldson, director of the behavior and training department at the San Francisco SPCA. "The likelihood is that people see signs and ignore them," Donaldson said. "Usually, there are small signs all along. You cook up the right circumstances and a lot of dogs are capable of doing this type of thing." 

• Carolyn Murphy of Lennox, CA, owned and attempted to sell puppies sired by Bane, advertising them as such. On January 14, 2002, she pleaded "no contest" (the functional equivalent to a guilty plea) to breeding dogs and running a kennel without a license, and having unlicensed animals under her control without providing rabies vaccinations for them. She was sentened to three years probation and ordered to pay more than $1,000 in fines. 

• Anton Plese was the criminal defense attorney for Carolyn Murphy.

• Lisa Houle, Deputy District Attorney, Los Angeles District Attorney's Office, was the prosecutor who obtained the "no contest" pleas from Carolyn Murphy.

Summary of testimony

• Janet Coumbs was the first criminal trial witness. She was the former caretaker of the Presa Canario dogs that killed Whipple. She thought these dogs were dangerous in some ways but also that they were gentle.

• David Moser is a neighbor who testified at the criminal trial that one of the dogs previously bit him, and that Noel saw it and said, "Hmmm, that's interesting."

• Lynn Gaines is a professional dog walked who testified in the criminal trial that she told Noel to muzzle the dogs, and that he responded by calling her a vulgar name and told her to shut up.

• Dr. Donald Martin is a veterinarian who testified in the criminal trial that he warned the defendants, in a letter, that the dogs were dangerous.

• Devan Hawkes is an employee of the California Corrections Department who investigates gangs. He has testified that Noel and Knoller are associates of the notorious Aryan Brotherhood, a prison gang.

• Neil Bardacktestified in the criminal case that in September 2000 he saw a dog dragging Knoller along a sidewalk, implying that she could not control the dog. He also said that the dog bit his own dog.

• John Watanabe testified in the criminal case that in January 2001 two Presa Canario dogs rushed at him in a "snarling frenzy," but suddenly turned around and ran toward Noel and Knoller.

• Rhea Wertman-Tallent testified in the criminal case that she saw the dogs howling and lunging at a dog that was across the street two days before Whipple died.

• Abraham Taylor is a professional dog walker who testified in the criminal case that one of the dogs charged at him.

2/25/02 testimony:

• Skip Cooley, who lived next door to Noel and Knoller, testified that (1) one of the dogs had lunged at him one day as he was getting out of the elevator; (2) he had lodged a complaint with the apartment manager that the dogs were making noise during the night with barking and scraping of claws on bare wood floors; (3) he once saw the defendants chasing the dogs down the street; and (4) that the dogs were docile when he was alone but when Cooley's wife was with him, the dogs became "attentive" toward her.

• Mario Montepeque, who trained dogs for 15 years as a hobby, testified in the criminal trial that he told Noel and Knoller that they needed to train Bane because he had put his chin on the back of another dog, which Montepeque took as Bane trying to be dominant. He also urged Noel to use a choke collar on the dog, but that Noel replied, "There is no control if the dog decides to charge, no way to stop him."

• Kelly Harris testified in the criminal trial that while walking her dogs in July 2000, her dogs darted off the trail ahead of her and started to circle a very large dog that was with Knoller. Knoller told her, "Please leash your dogs. You don't know how serious this is. This dog has been abused. He'll kill your dogs." Ms. Harris added that Knoller was very insistent and sounded afraid. 

• Henry Putek, Jr., a neighbor who lived on the same floor as the defendants,  testified at the criminal trial he saw Knoller sitting on the floor covered in blood with her head down and her arms around her knees. He even asked Knoller if the victim lying on the floor was his wife. 

• Diana Curtis, who lived in the building, testified in the criminal trial that she once encountered Noel and Hera in an elevator and the dog lunged at her face and Noel used a lot of force and pulled the dog back. 

2/26/02 testimony:

• Cathy Brooks, a dog fancier, testified in the criminal case that, while at a park, she admired Hera and asked Knoller if it was friendly. Knoller replied that "the dog was questionable -- sometimes good with people, sometimes not." As Brooks kneeled down to pet Hera the dog squared off her chest, made an aggressive stance with her hackles raised a little bit, her tail straight out, ears flat, and stared Brooks down. Brooks backed away very slowly. A few weeks later, Brooks encountered Noel with Bane and Noel told her, "My dog is not friendly." She asked him why the dog was not muzzled or restrained with a choke collar in an area were other dogs were allowed off their leashes and he told her he could walk his dog anywhere he damn well pleased. Brooks got upset and said, "If the dog is aggressive you shouldn't be walking him here." 

• Derek Brown, a resident of the defendants' apartment building, testified in the criminal trial that he and his wife were lunged at by the dogs on three separate occasions while Noel strained to hold them on leashes.

• John O'Connell testified in the criminal trial that one of the dogs lunged, growled, barked and bared its teeth at his 6-year-old son, coming within six inches of the boy's face. 

2/27/02 testimony:

• Esther Birkmaier testified at the criminal trial that on the day of the incident she heard growling and barking of dogs, then she heard cries for help, prompting her to look out her peephole. She saw a body on the floor with long hair, wearing light-colored clothes, and saw a dark shadow that looked like a dog. She looked out her peephole for 2 or 3 minutes before calling 911. She heard Knoller's voice which was loud and shrill, then crashing on her door so strong she put on the security chain, fearing the dogs might break into her apartment. She was very frightened and called 911 again. 

2/27/02 testimony:

• Paula Gamick, an EMT, testified in the criminal trial that, when she asked Knoller whether she was OK, she said, "I've seen this sort of thing before, I'm an EMT, I've been in bloody situations like this." (Knoller has had medical training but was not an EMT.) Knoller did not ask once about Whipple's condition. Gamick examined Knoller in her apartment and found only a small gash on Knoller's right thumb and index finger. According to Garnick, Knoller was not in shock, and all of her vital sign were normal. 

• Leslie Forestal, SFPD sargent, testified in the criminal trial that she found Whipple in the hall trying to crawl toward her apartment. She told Whipple to be calm, and that there was an ambulance on the way. Knoller did not emerge from her apartment for two to four minutes and she saw no wounds on Knoller, though one sleeve of her sweat shirt was torn. Forestal admitted giving no first aid until other officers arrived, several minutes later. 

• Officer Laws testified in the criminal trial that, when she arrived on the scene, she saw Hera trot past her. She also said that she did not give first aid to Whipple. 

• Andrea Runge, an animal control officer who arrived minutes after the mauling, testified at the criminal trial that Knoller was "oddly calm - almost cold," and that Knoller told her she was unable to handle the dogs or help bring the dogs out of her apartment. 

2/28/02 testimony:

• Sharon Smith testified in the criminal trial that, one month before Whipple was killed, she told Smith that one of the dogs d bitten her in the hand. Thereafter, Whipple was terrified of the dogs and did anything she could to avoid them, even pushing Smith in front of her to make sure there was distance between her and the dogs. Whipple told Smith that she had warned Noel "to control your dog," but Noel just stared at her. Bane once lunged at Smith and Smith jumped back and put her hand out in trepidation, only to be told by Noel, "No, don't do that!" Noel explained that the dog had just been in a fight with another dog and was "spooked." 

• Alec Cardenas, the first SWAT team officer on the scene, testified in the criminal trial that he is an EMT, that Whipple's injuries were far beyond his capabilities, that he had almost no medical equipment, and so he simply tried to stop the bleeding from one of her wounds. Knoller told him she was an EMT but she never asked him about the condition of Whipple or offered to help administer aid. 

• Spencer Gregory, Crime Scene Inspector, testified in the criminal trial and showed the jury three bags which were full of the pieces of Whipple's clothing, and one small bag containing clumps of Whipple's hair gathered from the scene. 

• Gregory Mar, SFPD Forensic Odontologist, testified in the criminal trial he could only match one bite on Whipple's body with the cast taken of Bane's teeth, and that other wounds could have been from either dog, but he was unable to determine whether or not  Hera made any of the bites.

3/04/02 testimony:

• Dr. Boyd Stephens, medical examiner, testified in the criminal case that Whipple sustained 77 wounds and that all surfaces of her body, except the soles of her feet and the tip of her head, were covered with wounds. Dr. Stephens testified that the damage to Whipple's larynx, combined with the loss of more than 1/3 of her blood, made it unlikely that medical intervention could have saved her. The principal injuries were to the vessels of the neck and larynx which were very serious and fatal injuries. On cross- examination he did agree that direct pressure to her wounds could have been of some help but that it was unlikely Whipple would have survived. Stephens said there was no evidence that there was anything between Whipple and the dog when it was biting her. He said that the cuts on Knoller's right hand could have been caused by a leash.

The prosecution rested its case on 3/4/02. The defense case began on 3/5/02.

03/05/02 testimony for defense:

• Dr. Stephanie Flowers, veterinarian, testified in the criminal trial that she had no problems treating Hera for rabies shots and the removal of a foxtail in her ear, although she did find that Hera was underweight and had a poor coat. Hera did not need to be sedated for the foxtail removal when other dogs might. On cross-examination she admitted that when Hera and Bane lunged at people and bit a neighbor it was "clearly inappropriate and potentially dangerous behavior."

• Allan Paul, owner of the San Francisco Brewing Company, testified in the criminal trial that he knew the defendants for years and they were regular customers, often coming in with their dogs who were always well-behaved and got along with the other customers of the pub. On cross-examination Mr. Paul admitted that he never saw the dogs in their home environment. 

• Antoinette Creyer, a waitress at the San Francisco Brewing Company, testified in the criminal trial that she thought Hera was beautiful and that she told Noel that Bane was a "good dog" who took treats from her hand. She said that the defendants had been good to her for four years and had asked her if she would like to adopt one of the dogs, which she declined because her apartment did not allow dogs. 

• Christopher Monica, an employee of Mail Boxes, Etc., testified in the criminal trial that the defendants copied their legal documents there on many occasions while one of the dogs would sit at their feet and that he would pet  the dog.

• Bonnie Seats, a friend of the defendants, testified in the criminal trial that she had met the couple with Hera outside their apartment building and she got on her knees to pet Hera who licked her hand and her niece who was seven months pregnant did the same thing. She said Hera was "a sweet dog...wagging her tail and loving the attention." 

03/06/02 testimony:

• Sheila Segurson, veterinarian, testified in the criminal trial that when she examined Hera for an evaluation of a heart murmur that Hera did very well and she did not have any problem although Hera was underweight and not in good shape. She evaluated Hera's temperament to guard against being bitten and found that Hera was a shy, timid and somewhat fearful dog, which can lead to aggression. On cross-examination she testified that the incidents of lunging and snarling at the apartment building residents was a serious warning sign indicative of serious aggression. 

• Andrew Sams, veterinary surgeon, testified in the criminal trial that he performed a knee operation on Bane and had no problem with him. When asked to evaluate Bane's behavior he said, "I'm a surgeon, not a behaviorist."

• James O'Brien, a retired police officer who ran an animal transport business and had transported Hera and Bane on separate occasions, testified in the criminal trial that the dogs were timid, placid and shy. On cross-examination O'Brien testified that when he delivered Bane and the five other dogs with him to the Los Angeles area there was a group of men with prison tattoos on their necks waiting and Bane was one of the dogs he left with them.

• Michael Beachnau, manager of Left at Albuquerque in San Francisco, testified in the criminal trial that the defendants were regulars at his restaurant and that they kept their dogs outside under caf‚ tables and that these dogs were no different than the many other dogs he had seen. 

• Angelos Prongos, owner of the Mayflower Market, testified in the criminal trial that the defendants would tie their dogs to a parking meter or garbage can in front of the store and that the dogs were never a problem.

• Lefty Prongos, owner of the Mayflower Market, testified in the criminal trial that the dogs were never a problem and that he even fed them meat with his hand and brought his wife to see them. 

• Heshe Stark, a private investigator who was a close friend of the defendants, testified in the criminal trial that she only met Hera once when the defendants visited her at her apartment and that Hera never made a move for her two cats which were only a few feet away.

03/07/02 testimony:

• David Kuenzi, who was visiting a friend who was a resident of the apartment building, testified in the criminal trial that he was in the stairwell of the building and heard shrill, high-pitched screams from a woman and he thought someone was being raped or beaten. He also heard a dog barking throughout the attack but it did not occur to him that the dog was "the agent of attack." The screams ultimately became a whimper and then the same woman said, "Stop, please stop." It seemed the woman was no longer screaming but begging for mercy. He did not believe there were two woman involved. He was terrified and unsure what to do so he kept running up and down the stairwell. He decided he had to call the police so he went to the lobby in order to get reception on his cell phone.

• Dave Neville, a defense witness, testified in the criminal trial that two weeks after the death of Whipple he encountered a man walking two dogs about five blocks from the apartment building that looked exactly like the presa canarios that mauled Whipple. The dog owner gave him an unfriendly look and Neville turned away. (The defense explained later that they called Neville to testify in order to show that there were other dogs in the neighborhood that scared passers-by, and that witnesses reporting encounters with Bane and Hera may have been mistaken.)

• Kim Boyd, a client of the defendants, testified in the criminal trial that she visited their apartment and had taken the elevator down with Noel and one of the dogs and passed a resident without incident.

• Stephen Tornay and his wife, Galene Tornay, operators of the Rowdy Creek Pet Motel near Pelican Bay State Prison, testified in the criminal trial that the dogs were left at the kennel twice in the weeks before the incident with Whipple and that the dogs were nice.

03/11/02 testimony:

• Polly James, veterinarian who treated Bane, testified in the criminal trial that Bane was lame in one leg and needed surgery. Dr. James was called as a witness for the defense but on cross-examination from the prosecution, she testified that she muzzled Bane before treating him because when she asked Noel if Bane was good with people Noel responded that he was not. 

• Darrell Sichel, a client of the defendants, testified in the criminal trial that he visited the defendants in their apartment several times and that the dogs were very friendly, and that he even asked Noel if he could get a dog of this type to guard his ranch and Noel offered to arrange it. 

On 3/11/02, Robert Noel rested his defense case. Knoller's case continued.

Further testimony on 3/11/02, 3/12/02 and 3/13/02:

• Marjorie Knoller testified on her own behalf in the criminal trial and sobbed as she stated "I'm feeling awful, just thinking about the horrible way that Ms. Whipple died in that hallway causes me great sorrow and I'm in pain for everybody that knew her and spent time with her." Here is a brief summary of her testimony:

• She said that Bane and Hera were trained in obedience, and that both were sweet dogs. If her husband had incidents with Bane, Knoller swears that she did not know about those incidents. 

• On the day Whipple was killed, Bane was sick. He had a painful hip condition, diarreha, and was on pain killers. Usually she did not walk him, but on that day he had to be taken to the roof at 11:00 AM and again at 3:45 PM. 

• Upon returning downstairs, Knoller took the poop bag to the garbage shoot, which was 70 feet from Whipple's door. At the moment that Knoller was depositing the bag into the shoot, the elevator arrived and Whipple exited it. Bane was disinterested in Whipple. 

• As Knoller opened the door to her apartment, 50 feet from Whipple's, Hera stuck her head out and barked. Knoller said that the barking Hera made Bane "interested" in Whipple. At that point, Bane began dragging Knoller down to hall, toward Whipple. 

• Knoller said that she did everything she could to stop Bane from attacking Whipple, including throwing her body on top of Whipple's body. When Whipple "moved in a manner where she struck me in the right eye with her fist or hand," Bane bit Whipple in the neck, which is the first time Knoller saw any blood. Knoller got back on top of Whipple and told her to stay down because Bane was trying to protect her. 

• Knoller screamed at her dog, "Bane, no. Bane, stop. Bane, off," but he would not respond to her commands and would not stop attacking Whipple, with the attack getting worse. 

• Knoller punched Bane in the face and put her hand in his mouth to try to stop his attack, and Bane began to bite her hand and then stopped. 

• When the attack ended Whipple was in "grave" condition and "had been bleeding profusely." 

• When asked if she was an associate of the Aryan Brotherhood, Knoller responded, "I'm Jewish and my family were survivors of the Holocaust. So, no." 

• "I had no idea that he would ever do anything like that," she said. "How could you anticipate something like that? A totally bizarre event? How can you anticipate that a dog that you know, that is gentle and loving and affectionate, can do something so horrible and brutal and disgusting and gruesome?" 

On 3/13/02, Marjorie Knoller rested her defense case. 

The prosecution's rebuttal lasted part of one day, 3/14/02:

• Randall Lockwood, an official of the US Humane Society, testified in the criminal trial that Knoller's wounds probably came from trying to pull on the dog's leash. He said that the bites on Knoller were of a different character than the ones on Whipple, and suggested that Knoller was at some distance from Whipple. He also testified that the odds of Bane killing Whipple on that day were "zero to one in ten million."

• The final piece of evidence introduced by prosecutors was a letter written by Noel to Schneider: 

  "There is no way to ease into this. Bane is dead, as is our neighbor," the letter began. "Neighbors be damned," he wrote. "If they don't like living in the building with [Hera], they can move."

The law 

Criminal law applicable to this case

The criminal charges against Noel and Knoller were as follows:

• Against Noel: 
  • Death caused by a mischievous animal
  • Involuntary manslaughter
• Against Knoller:
  • Death caused by a mischievous animal
  • Involuntary manslaughter
  • Second degree murder

Kenneth Phillips' analysis of these charges is given below. For a general review of the laws forming the basis of these charges, see:

• Death caused by mischievous animal
• Death caused by negligence
• Death as second degree murder

Three theories of recovery against Noel and Knoller

In California, the owner of a dog is strictly liable for dog bite injuries, unless the victim provoked the dog or was a trespasser. The topic of strict liability is covered in detail in another section of this web site. (See Legal rights of a dog bite victim, and the lawyer-oriented Civil liability for dog bites in California.) Noel and Knoller called themselves the "trustees" of the dogs that killed Whipple, indicating that they intend to defend themselves from a civil lawsuit on the grounds that they were not the "owner."  

They also were subject to other causes of action. One of them was that either or both defendants were negligent in the handling of the dogs. This web site contains much detailed discussion of negligence. (See Legal rights of a dog bite victim, and the lawyer-oriented Civil liability for dog bites in California.)

Yet another avenue of recovery was common law strict liability resulting from keeping a dog that has dangerous propensities. In other words, if Noel and Knoller should have known that the Presa Canarios, Bane and Hera, had the dangerous tendency to kill or violently attack a person, then one or both defendants could be held strictly accountable for all the consequences.

Theories of recovery against other defendants

In any dog bite case, the possible civil defendants include not only the owners and caretakers of the dog, but also the landlord and property manager where the dogs resided, the breeder, dog trainers and possibly others. The legal basis for all such claims is negligence. To be held liable, landlords and property managers of residential property have to possess actual knowledge that the dog(s) previously bit another person or exhibited a dangerous propensity of some kind.

Wrongful death

Because Whipple died, the legal cause of action was for her wrongful death. In such a case, the person suing is not the victim, who of course is dead, but whomever is allowed to file a wrongful death suit. That person usually is determined by the rules applicable to people who die without a will: the same person(s) who can inherit your property if you die without a will are the ones who can sue for your wrongful death.

Sharon Smith and Edythe Pamela Whipple-Kelly filed wrongful death suits against Noel and Knoller, and against the owner and property manager of the building where the dogs lived. Both lawsuits were settled, and the settlements have been kept secret.

In a wrongful death action, the value of the case is based on the value of the person's life to whomever is suing. Therefore it is not possible to give a rule of thumb about the potential damages in these cases, because they depend on the relationship between the victim and the person suing.

The legal proceedings 

Pretrial and trial

• The investigation began on the night of the attack, January 26, 2001.

• The dangerous dog hearing was on February 13, 2001, and the decision was announced February 22, 2001.

• The evidence hearing was on March 7, 2001.

• The presentation to a grand jury in San Francisco began March 8, 2001. It rendered indictments against Knoller and Noel on March 27, 2001. 

• Sharon Smith filed a wrongful death case against the dogs' owners on March 12, 2001.

• Noel and Knoller, on behalf of themselves and Schneider, requested a writ from the Court of Appeal on March 22, 2001, directing the trial court to exclude evidence seized from the attorneys' apartment and Schneider's cell. The writ was denied.

• On March 28, 2001, Knoller and Noel made their initial court appearance on the criminal charges pursuant to the indictments. Bail was set at $2 Million for Knoller and $1 Million for Noel.

• Noel and Knoller have repeatedly postponed their arraignment (i.e., the court proceeding in which they will be formally charged with the crimes, and they will enter pleas). 

• On May 9, 2001, Noel and Knoller filed a demurrer to the criminal indictment. A "demurrer" is a challenge to the sufficiency of a legal pleading -- in other words, it is the equivalent of saying that the indictment itself is not legal.

• On May 29, 2001, the demurrer was overruled, allowing the case to proceed with the original charges of second degree murder (against Knoller), and manslaughter and keeping a mischevious animal (against both Knoller and Noel). The defendants pleaded not guilty to those charges. The judge assigned the case to Judge James Warren for the purpose of trial. 

• In June 2001, the prisoners who allegedly owned the two Presa Canarios filed a motion in the civil case, asking to be made defendants. It was denied.

• On July 27, 2001, Judge A. James Robertson II denied motions by Noel and Knoller to dismiss Sharon's Smith's wrongful death case against them. There is no legal precedent for the judge's ruling. Noel and Knoller most likely shall appeal, and the Court of Appeals most likely will overturn the lower court's decision.

• Also on July 27, 2001, Judge James Warren ruled that Hera should be destroyed. However, destruction was delayed until after a decision as to whether the city's dangerous dog laws are proper. On August 3, 2001, Noel and Knoller, through attorney David Blatte, filed a petition for mandamus directed to the animal control hearing division of the San Francisco Police Department. "Mandamus" is a court order directed to a specific governmental agency, in this case the canine court in San Francisco that ordered Hera to be put down. The petition asked the Court to order the Police Department to conduct a new hearing to determine whether Hera should be euthanized. It was denied on August 21, 2001, by Judge A. James Robertson. Effectively, the judge ruled that Hera must be destroyed. This decision was appealed to the California Court of Appeals and the California Supreme Court, both of which let stand Judge Robertson's decision. The Supreme Court ruling was on January 16, 2002.

• On August 13, 2001, Noel and Knoller, through their attorneys, filed a motion asking for a change of venue -- a different location for their criminal trial. A political science professor at California State University testified (by written declaration) on their behalf, saying that media coverage of this case presented "one of the highest levels of prejudice I have ever seen." For that reason and others, the defendants asserted that they will never receive a fair trial in San Francisco. The motion was granted, and Los Angeles was selected as the place for the trial.

• On August 21, 2001, Knoller removed Jan Lecklikner and replaced her with Nedra Ruiz, who therefore will be Knoller's defense attorney in the criminal case.

• On the same day, Ruiz filed a motion to permit Knoller to go free prior to trial. It was denied.

• The trial of Noel and Knoller is sceduled to begin in January 2002. It is unlikely, however, that it will start on or even near that date. 

• On January 4, 2002, Noel and Knoller filed motions to have separate trials. The motions were denied.

• Also on January 4, 2002, Noel and Knoller filed a federal lawsuit on behalf of their son, Schneider, charging prison officials with giving him inadequate medical attention. The suit claims that surgical packing was left in his lower right leg during surgery in 1986 and was not removed until last year.

• The criminal trial started in February 2002 with jury selection, followed by motions to exclude evidence, and then the opening statements to the jury, which were on February 19, 2002. On that day, the first prosecution witnesses began their testimony. The names of the witnesses and a brief summary of their testimony is found above. 

• The prosecution rested its case on 3/4/02. The defense case began on 3/5/02 and ended on 3/14/02.

• On March 21, 2002, the jury returned verdicts of guilty on all charges, for both defendants.

• Noel and Knoller filed motions for a new trial. Knoller's motion was granted on June 17, 2002.

• On June 17, 2002, Noel was sentenced to four years in state prison. Knoller was not sentenced.

• On July 15, 2002, Knoller was sentenced to four years in state prison.

Appeal

• On July 2, 2002, the San Francisco District Attorney's office filed an appeal of the judge's order granting Knoller a new trial.

• On July 10, 2002, Knoller filed a challenge to the judge's jurisdiction to sentence her on the lesser charges, saying that jurisdiction over the entire case is now with the Court of Appeal.

• On May 5, 2005, the Court of Appeal reversed the trial judge's order granting Knoller a new trial on the second degree murder conviction. Click here to download and read the court's lengthy opinion.

• On July 26, 2005, the California Supreme Court granted Knoller's petition for review of the Court of Appeal's decision. The state's highest court denied Noel's petition. The Court's order limited the issues in the case, as follows: " Appellant Marjorie Knoller's petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) Whether the mental state required for implied malice includes only conscious disregard for human life or is satisfied by an awareness that the act is likely to result in great bodily injury? (2) Whether the trial judge abused his discretion in granting the motion for new trial under Penal Code section 1181 (6)."

• On April 13, 2006, Knoller filed her Reply Brief on the Merits. At this point, the case is fully briefed. The Supreme Court will begin the process of considering how to resolve the issues on appeal.

• On March 6, 2007, the California Supreme Court heard arguments in the appeal.

• On May 31, 2007, the California Supreme Court announced its decision, which reversed the Court of Appeal and sent the case back to the trial court. The trial court will be directed to enter a new order based upon the high court's decision. The lower court can either grant the new trial motion again, or deny the motion. Either way, further appeals are certain to be filed.

To see the California Supreme Court docket in a new window, click here.

The sentences and penalties

• Noel was released from prison in September 2003.

• Knoller was released from prison in January 2004.

• In January 2007, Knoller resigned from the California State Bar, making her ineligible to practice law in that state.

• In February 2007, Noel was disbarred by the California State Bar.

• On May 31, 2007, the California Supreme Court reversed the Court of Appeal and sent the murder conviction back to the trial court for a new ruling based on the correct legal standard. This means that Knoller can possibly be sentenced to an additional prison term, up to 20 years.

Observations 

The essence of the prosecutor's case

A number of witnesses testified that the dogs previously attacked them or exhibited extreme agression against them (short of physical attack, but clearly suggestive that it would someday turn into physical attack). Given the association between these defendants and the prisoners, Noel and Knoller certainly were aware that the Presa Canario breed was designed for violence. A veterinarian sent the defendants a written warning that the dogs would be "a liability." One of the dogs even bit Whipple prior to the day it killed her. 

The defendants were charged under three laws:

• The mischievous animal law (Cal. Penal Code sec. 399). This law says, essentially, that the owner of a dangerous dog that kills a person is guilty of a felony if the owner's criminal negligence permitted the dog to do so. Both Noel and Knoller were charged with this crime.

• Involuntary manslaughter (Cal. Penal Code sec. 192(b)). This law applies to any person who kills another as a result of doing something lawful "which might produce death ... without due caution and circumspection." In other words, this is a homicide that results from criminal negligence. Both Noel and Knoller faced this charge.

• Second degree murder (Cal. Penal Code secs. 187 - 189). The distinction between involuntary murder and second degree murder is that this crime is a killing with malice, as opposed to criminal negligence. Only Knoller faced the second degree murder charge. 

The essence of the defense 

The essence of Noel's defense was that that he could not be found guilty because he was not present when Whipple died. When he left home that day, the dogs were in the apartment, in the care of his wife; it was his wife who took Bane out and exposed Whipple to danger. How could he foresee that Bane would have an attack of diarrhea requiring his wife, Knoller, to take him to the roof to relieve himself? How could he foresee that he would have a flat tire that kept him away when the attack happened?

Knoller contended that she was not guilty of involuntary manslaughter or second degree murder for many reasons:

• The dog that killed Whipple was sick, recently had surgery, and was on pain medication. 

• The defendants were temporarily housing the dogs, for humanitarian reasons. 

• The dogs were not trained to attack, and had never been dangerous to humans. The DA has 30 prior incidents, but if any was so grave, then how come there were no complaints to animal control, no police reports, no lawsuits, no letters to the landlord, no “dog court” declaration of dangerousness?

• Knoller put one of the key issues this way when she testified at the criminal trial, "How can you anticipate that a dog that you know, that is gentle and loving and affectionate, can do something so horrible and brutal and disgusting and gruesome?"

• Knoller walked only one dog at a time, always in a harness, always trying to avoid neighbors.

• The dogs went crazy that day and became homicidal monsters – and they have paid for it with their lives.

• Knoller used her own body to try to save Whipple. Police photos of Knoller show her covered with blood from her head down, her hands cut, a black eye forming. She had bites and bruises. 

• Knoller was the only person in that building that tried to save Whipple. Others listened to the 5-10 minute attack through closed doors. One man said it sounded like a rape, but did nothing.

• The police took at least 10 minutes to render first aid to Whipple.

• The defendants have an unconventional lifestyle, but they have been recognized for representing AIDS patients, homeless people, and low-income tenants – so they are not that bad.

Second degree murder 

The California second degree murder statute does not easily fit a dog attack, and indeed application of this law previously was attempted only in the Cash Carson death case -- and there it failed because 3 members of the jury felt that it should not be applied unless the dog previously attacked another person. The statute establishes three kinds of second degree murder: 

• Unpremeditated murder with express malice. This might result from an intentional attack on the victim, using the dog as the instrument of the attack, but there has been no such case like that. 

• Second degree felony-murder. This would be a homicide that happens during the course of a felony that is inherently dangerous to human life, and not an integral part of the homicide itself. "Inherently dangerous" means that the felonious act presents a high probability that it will result in death. There are a few felonies that involve dogs, but there have been no prosecutions for second degree murder of this sort.

• Implied malice - murder. Malice is implied when either (a) no considerable provocation appears, or (b) circumstances indicate an "abandoned and malignant heart." The latter refers to doing an act with a (a) wanton disregard for human life, or an act involving a high degree of probability that death will result, or (b) conscious disregard for human life, i.e., doing something dangerous to human life, with actual knowledge of the danger and conscious disregard of the fact that the act endangers the life of someone. An act of implied malice can include a failure to act, such as not feeding a baby until it starves to death. A person might be convicted of second degree murder on an implied malice theory if he or she knew that a front yard has pit bulls in it, that the pit bulls were trained to attack human beings or had a habit of attacking human beings, that the pit bulls were capable of killing human beings, that the front yard had a gate that would permit the pit bulls to escape the yard if the gate were left open, that the gate might be open, and that children might be walking past the open gate. Indeed, that was the prosecution's position in the Cash Carson prosecution. However, the jury found the defendant not guilty because the dog had never attacked a person prior to killing Cash Carson.

Knoller said that she tried to save Whipple, unlike other occupants of the building, who heard the long mauling but did not venture out from behind closed doors. Police photos of Knoller, taken shortly after the attack, show her covered with blood, from head to toe, one hand cut (from trying to push the dog's mouth away from Whipple, Knoller has said), one eye turning black (from having been struck by a flailing Whipple as she fought for her life). Knoller also says that she was bitten on the shoulder and upper chest while trying to stop the attack. An expert witness testified that her wounds proved that she was trying to fight off Bane. 

Why the jury voted guilty 

Newton repeatedly emphasized that the many contradictions in Knoller's various comments about the mauling caused the jury to believe she was lying about just about everything. He said that her statements on the day of the killing, on Good Morning America two weeks later, at the grand jury hearing, and at the trial were completely inconsistent. For that reason, he said that the jury disbelieved her version of the mauling.

Newton said that there was a mountain of evidence that the dogs were dangerous. Furthmore, jurors were struck by the connection between the defendants and the prisoners at Pelican Bay. It is completely clear that the prisoners intended to raised and sell dangerous dogs. Given the involvement of the defendants in the prisoners' business, the jurors believed that Knoller was lying when she said that she did not know that Bane and Hera were capable of killing a person.

The defendants' motion for a new trial 

At the conclusion of the trial, the jury found the defendants guilty on all counts. The defendants moved for a new trial, on various grounds. The court denied the new trial motions for both defendants as to the lesser offenses of involuntary manslaughter and ownership of a mischievous animal causing death, finding that those verdicts were supported by "overwhelming" evidence. However, the judge granted Knoller's motion for a new trial as to only the second degree murder conviction.

The trial judge was of the firm belief that Noel and Knoller both were conscious of the risk that someone would suffer bodily injury because of their dogs. The judge said that the defendants “were fully on notice that they had a couple of wild, uncontrollable and dangerous dogs that were likely going to do something bad” and that “the something bad was going to be that somebody was going to be badly hurt.”

However, the judge ruled that the evidence was insufficient to establish the subjective component of implied malice because Knoller did not subjectively know on January 26 “that her conduct was such that a human being was likely to die.” The court's emphasis was on death, not mere bodily injury. Without proof of conscious disregard of the risk of actual death, there was no implied malice -- and without implied malice, the murder charge failed. In addition, the court noted that it was troubled because Noel, whom the court deemed "more culpable," was not similarly charged.

The court rejected the prosecution's argument that impled malice included the subjective appreciation of both the risk of death and the risk of serious bodily injury.

The trial judge defended his decision

"There was a statement made that this court has destroyed a sense of justice in the city of San Francisco. I certainly hope that is correct. I hope that is the result that I accomplished. A sense of justice is precisely what this court will never become involved in creating. A sense of justice is personal. It is infected with bias, prejudice, public opinion, public feeling, everything that the court should not be involved in. A sense of justice was achieved by vigilante posses. A sense of justice, I suggest, was achieved by Ku Klux Klan members and I daresay a sense of justice was achieved by people who flew airplanes into buildings not so long ago. That is not justice. That is not justice, in fact. It is a sense of justice that is personal. And it is precisely that which this court will seek to avoid. We will administer justice, in fact, in this case without regard to whether anyone feels that a sense of justice on a personal level has been achieved.

"I wish I were superhuman judge but I am not. I do not have every one of the 60 or 70,000 cases dealing with second-degree murder at the tip of my tongue or the tip of my hand. It does no good to go back today and say, 'Gee, if you had everything you knew today would you have done something different then?'" 

Edyth Pamela Whipple-Kelly's wrongful death claim 

A residential landlord in California is not liable for dog-related injuries unless it is proved that (a) the dog had a history of doing the kind of thing that caused the present injury, (b) the landlord had actual knowledge of the dog's history, (c) the landlord had an opportunity to control the dog or evict the owners of the dog, and (d) as a result of the landlord's failure to do so, the injuries happened. There were many people who came forward to say that these Presa Canario dogs were vicious, but nobody said that he or she complained to the landlord. In fact, some of the witnesses said that they didn't complain to anyone at all. Without proof that the landlord had actual knowledge of the viciousness of the dogs, therefore, the landlords could not be held liable.

Nevertheless, the case was settled, and the terms of the settlement were made confidential.

Sharon Smith's wrongful death claim 

The only heir(s) that can sue for wrongful death are the ones who are specified in the wrongful death statute. In California at the time that Whipple died, the wrongful death statute said that the mother and father (if living) of an unmarried person could sue for that person's wrongful death. Since Diane Whipple's father is deceased, her mother was the only person who could sue for wrongful death under the law as it read at the time of this killing. (The law was changed after Whipple died. See California moves to granting rights to domestic partners, below.)

Smith contended that she was been denied equal rights, that the denial is unconstitutional, and therefore that she should have been allowed to proceed with her lawsuit. Kate Kendell, one of Smith's lawyers, put the legal issue in a very provocative way: "The court cannot deny her a remedy because they were not married, while prohibiting them from being married." The first judge to hear Smith's contention sided with Smith.

Smith's case had three interesting challenges:

Marriage is a legal status, and each State decides what constitutes a marriage. California voters recently had an opportunity to change California law to recognize same-sex marriages to some extent -- and the proposal did not pass. Neither California law nor California's citizens favor such marriages. 

Permitting Smith to go ahead with her suit would have favored same-sex couples over heterosexual couples. California courts have held that unmarried heterosexual partners cannot make wrongful death claims. There has been no California case involving a same-sex couple. However, a ruling that same-sex partners can sue for wrongful death would give same-sex partners more rights than heterosexual couples. That arguably would be unfair because it would favor gay/lesbian couples over "straight" ones. The other side of the argument would be that heterosexual couples are allowed to marry. 

No prior case held that there is a constitutional right to sue for wrongful death. The court might say that no such right exists, or that, if it does, it is up to the state leglislature as to where the line should be drawn. For example, if your brother dies (unmarried and without children) and your parents are alive, you cannot sue for his wrongful death, despite how much you might have loved him, because the state legislature has decided to draw the line so as to include your parents and exclude you. You have no constitutional right whatsoever in connection with his death. The same limitation might apply to Smith or any other domestic partner, whether gay, lesbian or heterosexual.

Smith's case was settled with a confidentiality clause, like that of Diane Whipple's mother.

California grants new rights to domestic partners 

In response to testimony from Sharon Smith, the state of California now grants a number of new rights to domestic partners. Among other things, registered same-sex domestic partners are entitled to sue for wrongful death. This new law did not benefit Smith because she and Whipple were not registered.

Can the conviction of Knoller be reversed on appeal? 

As stated above, the murder charge against Knoller was overturned by the trial judge, who granted Knoller a new trial. The District Attorney appealed that decision. On May 5, 2005, the Court of Appeal announced that it agreed with the District Attorney.

The Court of Appeal wrote an unusually lengthy opinion. A section of the opinion dealt with the meaning of implied malice. The court noted that some prior decisions defined implied malice as essentially the conscious disregard for human life, while other decisions defined it as an awareness that the act is likely to result in great bodily injury. The appellate court concluded that the trial judge should have focused on great bodily injury and not death. The court said, "the question is not whether Knoller knew her conduct was likely to result in the death of someone, but whether Knoller knew her conduct endangered the life of another and acted in conscious disregard for life or in wanton disregard for life."

Then, on July 26, 2005, the California Supreme Court nullified the Court of Appeal's decision and agreed to review Knoller's conviction. The Court's order limited the issues to two: (1) Whether the mental state required for implied malice includes only conscious disregard for human life or is satisfied by an awareness that the act is likely to result in great bodily injury? (2) Whether the trial judge abused his discretion in granting the motion for new trial under Penal Code section 1181 (6).

The California Supreme Court heard arguments on March 6, 2007. Members of the court questioned the defense attorney and the deputy attorney general as to whether the existing jury instruction on second degree murder was correctly written, what the prior California cases have held, whether the trial judge focused on both elements of the test for second degree murder, how great the probability of death must be (a high probability or just a substantial chance), what type of risk should be included (a risk of death, of severe bodily injury, or simply bodily injury), whether a dog's act of snapping at people should be regarded as giving notice of an intent to kill people, whether an appellate court should reverse a trial judge when the latter nullifies a guilty verdict in his role as the "thirteenth juror," and what the remedy should be if the supreme court agrees essentially that the trial judge should not have granted the motion.

The California Supreme Court's ruling was announced on May 31, 2007. Substantially as predicted by Attorney Kenneth Phillips (fn. 1), the court reversed the trial judge on the ground that he incorrectly applied the test for second degree murder. The court held that a defendant can be convicted of second degree murder if he has "awareness of engaging in conduct that endangers the life of another." The justices also disgreed with the trial judge's concern that Knoller was convicted of murder while Noel was not even charged with it. The high court remanded the case to the trial judge for his reconsideration. The lower court now will have to weigh the evidence and decide whether it satisfies the Supreme Court's formulation of the second degree murder standard.

The highest court's reasoning was as follows:

[T]he Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant’s awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller’s new trial motion in light of the views set out in this opinion.

To download and read a copy of the Supreme Court opinion, click here.

The California Supreme Court's decision means that Knoller can possibly be sentenced to an additional prison term, up to 20 years.

The California Supreme Court decision will be particularly difficult to apply in a canine homicide case, including the Knoller prosecution. The court says that second degree murder rests upon the defendant's awareness that his conduct would endanger the life of another. That will always be difficult to prove when the killing is accomplished by a dog. In California there is a legal presumption that dogs are friendly. Compare a dog case to a stabbing or shooting: when there is a fatal stabbing or shooting, the prosecutor does not have to establish that the knife or gun was indeed a deadly weapon, because their injurious potential is well known. Therefore a case of canine-inflicted murder requires proof of something not necessary in many other crimes, namely that the instrumentality that accomplished the act was known to be the opposite of friendly and beneficial to human beings.

This proof is especially difficult because of its subjective nature: remember that second degree murder requires, on the part of the defendant, a subjective awareness that his conduct would endanger the life of another. Most dog owners believe that their pets are friendly, helpful and loving -- Marjorie Knoller believe this and testified to this effect in her trial. In this type of case, that conduct may consist of merely letting the dog out or taking for a walk (Knoller herself took the dog to the roof because the animal was very sick the day it killed Whipple). Exactly how would a prosecutor prove that the dog owner had this subjective awareness?

There is another reality that a prosecutor will have to face in this kind of case, and that the trial judge will have to consider in the Knoller case. It is very rare for a dog to kill a person. People are killed more frequently by lightening than by dogs. In the United States, approximately 70 million dogs kill only 20 to 25 people per year. For that reason, a walk with you dog is more likely to see you killed by lightning than to see a neighbor killed by your dog. When it comes to the actions of a dog, it is difficult to anticipate that the death of a person might occur when the dog is exposed to other people. Keep in mind that the Supreme Court specifically ruled that having an awareness that one's dog might inflict severe bodily injury is not sufficient for second degree murder charge. If a dog owner has any appreciation at all of the vicious nature of her pet, it is most likely that she appreciates the possibility that it will bite someone, not kill them. This will be another barrier to these prosecutions in the future.

The trial judge's new ruling will not put an end to the case, however. No matter how the lower court rules, the losing party will file another appeal. It took five years for the first one to be decided; it could take five more for the second. The murder conviction of Knoller might be reversed on appeal, but it will take years.

Finding meaning in Diane Whipple's death 

If we focus on the strange facts of this case, and the horrible way Whipple perished, we will learn very little of practical importance, and therefore her death will not have the meaning that it otherwise should. Instead of concentrating on the macabre aspects of this terrible tragedy, let us look at it in its proper context.

There is a dog bite epidemic in the United States. Almost one million Americans receive medical treatment for dog bites every year. In a 10-year period from 1986 to 1996, the number of dogs rose by 2% while the number of bites requiring medical attention increased by 33%. Perhaps this death can be the inspiration to change some laws and thereby reduce the number of dog attacks in this country:

Attorney Kenneth Phillips has described the 10 things that must be done to end this epidemic. See Preventing Dog Bites. These methods are superior to the criminal laws that have been suggested. It is more effective in the long run to eliminate a problem than to criminalize it. Worse yet is treating a horrible death as though it were nothing more than a horror story, and not taking steps to improve the situation. Whipple's death was certainly horrible but we can make it meaningful if we do something to lessen the chances that it will happen again. 

Like the rest of us, the California Legislature has observed the Whipple prosecutors struggle for years with the existing law pertaining to deaths caused by dangerous dogs. Certainly the unusual length of the Court of Appeal's decision in 2005 was a clear indication of the serious and complex issues that raised by this homicide. The questions raised in the Supreme Court hearing underscored the difficulty of using existing laws to make the punishment fit the crime, when the crime consists of the irresponsible ownership of a dangerous dog. But what has the legislature done to correct this situation? The answer is nothing. Unlike other states, such as Colorado and Pennsylvania, there still is no California law that defines second degree murder in the specific context of a canine-inflicted homicide. California dog owners continue to be exposed to a potential murder conviction without a clear standard for their behavior. Such a standard would help stem the tide of the dog bite epidemic. Such a law would honor Diane Whipple's death.

Whipple's death also rasies the issue of breed bans. In the United States, there are very few places that ban certain breeds of dogs, such as pit bulls and Presa Canarios. California actually has a law that makes it illegal to ban breeds. Consider this, however: in urban areas, goats and chickens are illegal, but big, powerful dogs that were bred for working in the fields are not. The Presa Canario, for example, was bred to herd cattle and do guard duty. What possible reason justifies allowing such a dog within city limits -- and in an 800-square-foot apartment like the one Noel and Knoller lived in? Many authorities say that the big, powerful dogs do not belong in crowded cities. This would apply to all such dogs, and constitute a breed ban applicable to a number of breeds.

There are lesser measures that can be taken against certain dogs, which would not amount to banning their breed, but which would probably reduce injuries. Former criminals and chronic dog law offenders can be forbidden to own the bigger, more powerful dogs. Muzzles might be required on certain dogs. Insurance could be mandatory for certain breeds of dog. Measures like these are referred to as "breed specific legislation," but they don't even have to be breed specific if the laws apply to all of the bigger, more powerful dogs. (Read more about this at Preventing Dog Bites.)

Society needs to look again at the usual prejudice against breed specific legislation. If dog owners really are entitled to have any kind of dog that they want, including Presa Canario dogs, and if dog owners can have any kind of dog in any kind of surroundings, including a crowded urban area and even a crowded apartment building like that in which Knoller, Noel and Whipple lived, then why was it fair for the Whipple prosecutor to condemn Knoller and Noel for owning those dogs? The Whipple trial was in many ways a breed specific prosecution. We should not permit this double standard to exist. Either we are for breed-based restrictions, or we are against them. We cannot tell dog owners that they can get any kind of dog that they want, but "throw the book at them" for having those dogs. It is hypocritical and will do nothing to end the dog bite epidemic.

It should also be noted that Whipple's death -- specifically, the wrongful death lawsuit of Sharon Smith -- raised issues that affect not only gays and lesbians, but mothers, fathers and other heterosexual people of the state.  The resolution of those issues added another level of meaning to the horrible death of Diane Whipple. 

Further information

The website of CourtTV has extensive materials on the Whipple case, including some video. Attorney Kenneth Phillips was a commentator on CourtTV during the Whipple trial.

To download a copy of the California Supreme Court opinion, click here.

Footnotes

Footnote 1. Following the hearing on March 6, 2007, Attorney Phillips wrote on this site:

"The hearing lasted one hour, raised a great number of questions, and provided few answers. It appears clear that the court will reverse the trial judge, probably on the ground that he incorrectly applied the test for second degree murder. The court most likely will hold that a defendant can be convicted of second degree murder if he consciously disregards the fact that his actions present a substantial risk of severe bodily injury or death. The court probably will remand the case to the trial judge for his reconsideration in light of the high court's decision. Judge James Warren then will have to weigh the evidence and decide whether it satisfies the supreme court's formulation of the second degree murder standard."