Both Noel and Knoller said that they did not own the dogs, and therefore could not be found guilty of violating the mischievous animal law. Further, both pointed out that these dogs were not trained to fight, attack or kill. In fact, they contended that the dogs could not be sold for training as fighting dogs, because both of them were ill. The defendants asserted that the dogs were “high spirited” and maybe a threat to other animals, but were fine with people.
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.
The strangest charge in the criminal case was the second degree murder indictment. This crime is committed when a person is killed as a result of malice. Photographs of Knoller (the only person accused of second degree murder in this case) taken two hours after the mauling seemed to support her claim that she was trying to save Whipple’s life. Furthermore, an expert witness testified that her wounds prove that she was trying to save Whipple from the attack. Given the legal requirement that the presence of malice be proved “beyond a reasonable doubt,” it appeared highly unlikely that Knoller would be convicted of 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.
There were absolutely no facts to suggest that Whipple’s death resulted from express malice or that it happened during the course of a felony. Consequently, the only way to convict Knoller of second degree murder was to prove that this killing resulted from implied malice. The prosecutors successfully contended that Knoller’s conduct on the day in question showed conscious disregard for human life, and therefore that Knoller’s act demonstrated implied malice. They convinced the jury that implied malice was shown by Knoller’s knowledge of the dangerousness of the breed, the history of these particular dogs, the fact that she knew that she could not control the dogs, and the generally malicious attitude of the defendants towards other people.
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.
After Knoller lost her appeal to the California Supreme Court, the case returned to the trial court for a ruling on her motion for a new trial. Denying the motion, the lower court based its ruling on its conclusion that Knoller “knew her conduct endangered life.”