Commentary on the Diane Whipple Case – Prosecutions Will Be Difficult In the Future

The California Supreme Court decision rendered on May 31st will be particularly difficult to apply in a canine homicide case, including the Knoller prosecution itself. In fact, when the new trial motion is reconsidered by the trial court, the Supreme Court holding could easily result in the motion being granted a second time. 

The Supreme 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. Here is why:

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 believed 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 it for a walk (Knoller herself had taken 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 when ruling again on the new trial motion. It is extremely 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 your dog is more likely to see you killed by lightning than to see a neighbor killed by your dog. 

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. To get convicted, the dog owner must have an awareness that death might result. 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. So this decision actually poses some significant barriers to these prosecutions in the future. 

For comprehensive information about this case, see The Diane Whipple Case on the Dog ite Law web site.