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Mauling Murder Count Voided

Law: Judge throws out the verdict against a defendant, saying she did not know the dogs would kill a neighbor. He lets stand lesser convictions.


SAN FRANCISCO — A judge on Monday threw out a second-degree murder conviction against a San Francisco woman in the gruesome dog-mauling of a neighbor in January 2001, citing insufficient evidence that the owner knew the dogs would kill.

Superior Court Judge James Warren upheld convictions against Marjorie Knoller and husband Robert Noel on the lesser crimes of involuntary manslaughter and keeping a dangerous animal.

Warren sentenced Noel to the maximum of four years in state prison in the death of 33-year-old lacrosse coach Diane Whipple. But he postponed the sentencing of 46-year-old Knoller until mid-July so prosecutors could have time to persuade him to reconsider.

If those efforts fail, Knoller will face a maximum of four years in prison. She could have been sentenced to 15 years to life had the murder conviction stood.

The judge's ruling outraged the prosecutor and the victim's partner, who said he effectively invalidated the jury system.

While calling Knoller and Noel "the most despised couple" in San Francisco for raising two dangerous dogs they knew to be "time bombs," Warren said the evidence did not support second-degree murder because prosecutors did not show that Knoller knew the dogs would kill Whipple when they encountered her in the hallway of an upscale apartment building.

The judge acknowledged that the case has outraged the Bay Area and much of the state--some letters he has received, he said, encouraged him to impose the death penalty.

But Warren said his hands were tied: "I understand the enormous frustration of the people. There is no question in the court's mind that in the eyes of the people the defendants are guilty of murder. In the eyes of the law, they are not."

Still, Whipple's partner, Sharon Smith, fought back tears as she questioned why the judge would contradict a Los Angeles jury that had convicted the couple on all counts after a five-week trial. Citing pretrial publicity, Warren had moved the trial south to Los Angeles.

"I'm in shock; we're all in shock right now," Smith said. "Justice was done, and now I feel that justice has been undone."

Deputy Dist. Atty. James Hammer pointed out that prosecutors did not initially seek a murder charge but that a grand jury that reviewed the evidence had added the charge.

"That's what the grand jury chose. They were right, and you have taken that away," Hammer said, pointing a finger at the judge. "And I think it is a travesty."

Don Newton, who served as foreman of the trial jury, found the judge's decision curious:

"I'm disappointed," Newton said. "We didn't believe anything Marjorie Knoller said. And we followed pretty closely the instructions that [Warren] gave us in terms of malice and second-degree murder. But they have a right to appeal, and that's the way the system works. If they win on appeal, it doesn't destroy the rest of my life."

Knoller was the first California dog owner convicted of murder in a mauling case. Prosecutors are now investigating whether they can take Knoller to trial again on the murder charge, and whether they can bring additional charges against Noel, who the judge suggested was more culpable and may also be guilty of perjury for lying to a grand jury.

Smith initially told her civil attorneys she could not endure a second trial, but her lawyers later said she would support any decision made by prosecutors.

Warren said the state did not prove Knoller demonstrated "implied malice," a point he called central to the case. To uphold a second-degree murder charge, the law says that Knoller had to have a "subjective understanding" that her actions would bring serious bodily harm or death when she brought the dogs outside her apartment that day, he said.

"The defendants were on notice they had wild, uncontrollable and dangerous dogs that were going to do something bad," he said. "Is that something bad death? I cannot say as a matter of law that she [Knoller] subjectively knew that a human being was going to die."

One of Knoller's attorneys, Donald Horgan, said the judge made the right decision. "It was certainly a difficult and courageous decision. It was also the right decision," he said. "Ms. Knoller simply did not expect that what happened would happen."

In a proceeding carried live on local television, Warren said he also found it troubling that prosecutors did not seek a second-degree murder charge against the 60-year-old Noel, who took the lead in raising the two powerful Presa Canarios but who was not present at the attack.

"To say he wasn't responsible because he wasn't there," the judge said of Noel, "is like arguing that he [planted] a bomb and then took a plane to New York City and therefore is not responsible for the damage the bomb does."

After receiving credit for time already served and for good behavior, Noel will probably serve an estimated 13 months in prison, prosecutors say.

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