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Why The Judge Was Right To Throw Out The Murder Count, And The Prosecutors Were Wrong To Bring It


Wednesday, Jun. 19, 2002

The integrity of the criminal justice system depends in large measure on the public's belief that the system dispenses justice. Accordingly, televised coverage of the trial process can, at least in theory, help ensure that justice both is and appears to be done.

But the public sensationalization of selected criminal trials also threatens to do considerable harm. In particular, it creates the risk that those involved in running the trial--particularly the judge, prosecutor, and defense attorney--may allow public opinion to dictate, or at least affect, how they discharge their duties.

Consider, for example, People v. Knoller, the San Francisco dog-mauling case. The Knoller case has been a mainstay of Court TV and other media coverage from its very beginnings. (Art even imitated life when the events of the case were featured in a "ripped from the headlines" episode of "Law & Order" earlier this year.) And unfortunately, the intense media attention may have affected how the prosecution pursued the case.

A Murder Conviction for a Dog Attack, Later Thrown Out By the Judge

In January 2001, Diane Whipple, a 33-year-old lacrosse coach, was returning home with groceries. At the same time, her neighbor Marjorie Knoller was taking her two 120-pound presa canario dogs outside for a walk, without having muzzled them.

One of the dogs tore off Whipple's clothes, bit her throat, and dragged her down the hallway of the apartment building. Whipple was rushed to the hospital but died hours later.

A San Francisco grand jury indicted Knoller and her husband Robert Noel, charging them, as the prosecution had requested, with involuntary manslaughter, which carries a maximum sentence of four years, and owning a mischievous animal. But the grand jury also went further, indicting Knoller for second degree murder, which carries a maximum sentence of fifteen years to life. Although the prosecution had not initially sought a murder indictment from the grand jury, it proceeded to prosecute Knoller on that charge while also prosecuting both Knoller and Noel on the other two charges.

In March of this year, Knoller and Noel were convicted on all charges - even the second degree murder charge against Knoller. That became one of only a very few murder convictions for a dog attack anywhere in the country, and the first such conviction in California.

Then on Monday of this week, the trial judge threw out the jury's guilty verdict on the murder charge, concluding that the evidence was insufficient to support a conviction on that charge.

The prosecution has vowed to appeal, calling the judge's decision a "travesty." The lead prosecutor complained to the judge: "[The] grand jury chose murder for that woman over there, and twelve jurors said they were right, and you took it away."

To be sure, the decision to upset a jury verdict is serious and a judge must not make it lightly. And it may well be that, on appeal, the California appellate courts will find fault with the trial judge's decision in this case.

Nevertheless, the events of this case should cause us to ask serious questions not only of the judge, but also of the prosecution. To see why, we must consider both the law of second degree murder in California and the extreme public outrage generated by this case.

Meeting California's Second Degree Murder Standard: A Hard Case To Make

As noted above, to satisfy California's standard for second degree murder the prosecution must show the defendant acted with such disregard for human life that she created a "high probability" of a fatality. The classic example of such conduct is when a defendant intentionally fires a gun into a crowded area. Even if the defendant did not specifically intend to kill anyone, firing the gun in that circumstance is sufficiently likely to cause serious, even fatal harm that the law regards her as guilty of murder.

In Knoller's case, the available facts suggest that she certainly acted recklessly in taking her large, dangerous dogs outside without muzzles. But under California law, recklessness is not enough for second degree murder. And the available facts disclose little basis for concluding that Knoller knew or should have known that taking her dogs outside without muzzles carried a "high probability" of causing death, even if it was an extremely unwise thing to do.

Accordingly, the initial instinct of the D.A.'s Office not to charge Knoller with murder appears to reflect the better view of the law.

A Case That Caused Public Outrage, Fueled by Intense Media Attention

But this was no ordinary homicide case. For one thing, it generated a storm of media coverage that almost without exception depicted Knoller and Noel as virtually everyone in San Francisco apparently now sees them: extremely reckless, entirely remorseless, and generally despicable.

Then, once trial commenced, the prosecution put on evidence designed to show that Knoller and Noel were associated with a white supremacist prison gang known as the Aryan Brotherhood, and that they and members of the gang had developed a plan to breed vicious attack dogs. The dogs involved in the mauling of Diane Whipple, the prosecution contended, were a product of that plan.

Ultimately, the San Francisco media attention and public outrage became so intense the trial had to be moved to Los Angeles. As the Los Angeles trial judge observed on Monday, Knoller and Noel had become "the most despised couple in San Francisco."

Did Public Opinion Affect the San Francisco Prosecutors?

The transfer to Los Angeles notwithstanding, the San Francisco District Attorney's office continued to handle the prosecution, and the couple had already been indicted by a San Francisco grand jury. Thus, we must still ask whether the grand jury's evaluation of the case was infected by the media coverage and general public opinion of the case in San Francisco, and, perhaps more crucially, whether the prosecutors in the case allowed public opinion to drive the discharge of their responsibilities.

The prosecution's almost unprecedented decision to prosecute Knoller for murder, and not just manslaughter, deserves special scrutiny. The District Attorney initially declined, as mentioned above, to seek an indictment against Knoller for second degree murder - presumably because he thought Knoller could not be expected to have known that her conduct involved a "high probability" of death (as the judge later held). But the D.A. apparently changed his mind.

Despite the grand jury indictment, the D.A. certainly could have dropped the murder charge and adhered to his initial assessment that the charge was not appropriate based on the case's facts. Indeed, if in his best judgment the D.A. believed the facts did not support the charge, then as a public servant and officer of court he should have dropped the charge. We should expect--indeed, we must insist--that prosecutors will seek only the convictions and sentences that they believe are warranted under the law.

The charge, however, was not dropped. Given the circumstances of the case, it seems fair to wonder whether public opinion and media coverage--as opposed to a changed assessment of the law of second degree murder--drove the D.A.'s decision to go forward.

Prosecuting Under the Pressure of Public Opinion

The choice not to proceed with an indictment can be extremely difficult - especially when, as in this case, intense media coverage feeds a growing public rage against the defendant. Presented with an indictment for murder against a defendant who had provoked the most passionate hatred from the citizens of his city, the D.A. in this case may have been tempted to proceed with the murder charge and override any initial doubts about its legal basis.

But whatever the ultimate basis for the D.A.'s decision, the circumstances of this case remind us of the importance--particularly salient in this post-September 11 era--of insisting that prosecutors, like judges, resist the temptation simply to do what is popular with the public, law be damned.

Trevor Morrison is a lawyer in private practice in Washington, DC. He previously spent two years in the U.S. Department of Justice, first as a Bristow Fellow in the Office of the Solicitor General, and then as an Attorney-Advisor in the Office of Legal Counsel.

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