MORE ON THE CALIFORNIA DOG-MAULING TRIAL: The Judge's Decision To Throw Out The Jury's Guilty Verdict On The Murder Charge

This is Part Two of a two-part series by Aronson on the dog-mauling trial. - Ed.

In my prior column, I noted a discrepancy relating to the notorious California dog-mauling trial: The community - in the form of the grand jury - chose to indict Marjorie Knoller for murder, but the executive branch - the prosecutors - initially sought only an indictment for manslaughter from the grand jury.

Interestingly, a very similar drama played itself out at the end of the trial. The community - this time in the form of the trail jury - returned a guilty verdict on the murder charge. Nonetheless, a second institution - the judiciary - independently determined that this was not a case of murder, but rather one of manslaughter.

In this column, I will examine the bases for the judiciary's decision to second-guess the trial jury's verdict.

Why the Judge May Have Sent the Case to the Jury, Despite Worries About the Evidence

After the prosecution had presented its evidence, the defense moved the Court to acquit Knoller of murder. The defense argued that there was not enough evidence to prove the required malice for the murder charge. However, the judge denied the motion, saying that there was enough evidence for the charge to go to the jury.

How can this decision be reconciled with the judge's later decision that there was not enough evidence to support such a verdict? Surprisingly, it is relatively easy to reconcile the two.

Judges believe that if they harbor doubts, the jury will likely harbor doubts, too. And in our system, juries, not judges, are supposed to decide. If not, why did we pluck those citizens out of their daily lives for jury service?

So the judge allows the jury to deliberate - hoping that the jury will acquit but knowing that she can overturn the verdict if, for some reason, they don't. Only rarely is the judge disappointed. In most cases, the news of the acquittal is delivered by the jury, which is exactly as it should be. In the dog-mauling case, of course, the opposite occurred: The jury found Knoller guilty of murder.

After the Guilty Verdict: What the California Court Could - and Did - Do

After the jury's guilty verdict, the defense moved for a new trial on the charge of murder alone. The defense argued that the judge should not have accepted a guilty verdict on both murder and manslaughter, since both charges cover the same conduct.

The judge did not accept the "same conduct" argument, which is relevant to the Constitution's Double Jeopardy Clause. But it did grant the new trial motion as to the murder charge alone. (The manslaughter conviction still stands). And it also gave the government time to try to persuade the court that the murder conviction was warranted.

The process by which the judge reached his decision is distinctly Californian. In most jurisdictions, following a jury verdict, the trial court can either let the verdict stand or set it aside. In deciding the issue, courts ordinarily apply a high standard: a judge can only overturn a verdict where "no reasonable jury" could have found the defendant guilty. The strictness of the standard is commensurate with the nearly sacred place juries hold in our system.

In California, however, the judge has an intermediate option. Acting as a "thirteenth juror," the judge can simply reweigh the evidence. She is not reviewing the verdict; she is simply reviewing the evidence - envisioning herself as a hypothetical "thirteenth juror" as she does so. If she is not persuaded, she can simply vacate the conviction and impose sentence on lesser charges. This seems to be what Judge Warren contemplates doing.

But there's a strange wrinkle. Recall that the manslaughter verdict still stands, and the judge seems to plan to impose sentence for that charge. That may result in a double jeopardy problem.

Ordinarily, when a judge vacates a greater charge and sentences on the lesser one, double jeopardy bars a retrial on the greater charge. For instance, if you are convicted of both grand theft and misdemeanor shoplifting, and the theft conviction is vacated and you are sentenced for shoplifting, that shoplifting sentence is the only one you will ever have to serve.

Should the Judge Have Questioned the Jury's Verdict?

Did the judge do the right thing? It's uncertain. Judges should certainly question verdicts - using either California's "thirteenth juror" standard or the more traditional "no reasonable jury" standard - when they can play to their institutional strengths. It's not at all clear that that happened here.

This was, for starters, an unusual case, and not just in the respects I've already outlined. Charging dog owners is itself rare, and charging them with murder is rarer still. But the very rarity of the charge argues for greater deference to the jury's verdict, not less.

By comparison, any criminal trial judge can draw on a wealth of experience in reviewing a verdict in, say, a case based on a bar fight or a crime of passion. An active role for the judge makes sense in such a case, since judges must ensure that those sentenced for a crime are sentenced in a manner roughly equivalent to the others found guilty of that crime.

But where the judiciary does not have such experience, the justification for second-guessing a jury's verdict is weaker. Here, the judge really was just another citizen weighing the evidence - without any special advantage, derived from his own history of reviewing cases, over the twelve citizens in the jury box. (Of course, that may be just what the "thirteenth juror" standard asked the judge to do, but that's another matter.) As a result, the judge had far less than the usual justification for independently reviewing the evidence.

Moreover, for the very reason that murder convictions are so rare in the pet cases, there are fewer concerns that Knoller's sentence will be out of whack with those fictitious touchstones of fairness, the "similarly situated." Undoubtedly, because she was convicted of murder, Knoller's sentence would have been longer in comparison with those of other dog owners who were sentenced on charges of manslaughter. But that's exactly the point: the jury here thought that Knoller was guilty of murder, not just manslaughter. Knoller's sentence can't be unusual for those convicted of using their dogs to murder, because so few people have been convicted of doing just that.

The "crime" here is not owning a dog that killed. As I explained in my earlier column, those are facts that fit many crimes - murder, manslaughter, owning a dangerous animal, assault, and probably others. The "crime" here is the crime of murder - and the jury was just as well-equipped to determine whether the facts fit that crime as the judge was.

The role of the executive (including prosecutors) and the judiciary is, sometimes, to check the passions of the community. But that does not mean that these institutions are always or only or necessarily doing their job when they reduce the weight that the justice system brings to bear on defendants. In our criminal justice system - no less than in other parts of our democracy - great deference is owed the voice of the people.