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Murder by Canine - March 22, 2002

By James L. Hirsen, J.D., Ph.D.
contributor to

It's a case that has made Hollywood screenwriters green-eyed.

  • The defendants: two odd San Francisco attorneys with an adopted prison-inmate son.

  • The victim: an attractive female college lacrosse coach with a lesbian lover.

  • The mode of death: a rare breed of attack dog housed in a densely populated urban setting.

  • The defense lawyer: a trained actress, theatrical to the point of distraction, who crawled across the courtroom floor, kicked the jury box and screamed her way though the trial.

  • The prosecutors: one former lingerie model, now wife of a county supervisor, and one former seminarian who left the priesthood to pursue an openly gay lifestyle.

Prosecutors could not have dreamed up any less sympathetic defendants. From the defense point of view, Marjorie Knoller and Robert Noel were a public relations nightmare.

Criminal defense lawyers generally advise their clients not to go public with statements about a pending case. Knoller and Noel not only violated this standard, but they also let all who would listen know that they bore no responsibility for the death of Diane Whipple.

In letters and appearances on national television, Knoller and Noel showed no remorse. They blamed everyone but themselves, chucking responsibility at the victim, the neighbors, the D.A., the media, the prison officials and the grand jurors.

They had legally adopted a 39-year-old convict with ties to a white supremacist prison gang. Contrary to conventional defense lawyer advice, they testified before a grand jury. Allegations even surfaced concerning sexual involvement with their so-called son and their dogs, which was not presented to the jury because it was ruled inadmissible by the judge.

Many are puzzled about Knoller's second-degree murder conviction. The confusion can be cleared up with some background information on California law.

The California Penal Code says that the mental state required for a murder conviction is "malice aforethought." This requirement can be fulfilled with what the code calls "implied malice."

Implied malice arises when "the circumstances attending the killing show an abandoned and malignant heart." When someone shows a reckless disregard for the life of another, the mental state for murder is implied. A defendant must have knowledge of the danger and consciously disregard peril to the life of another ­ shooting a gun in the direction of a crowd of people, for example.

Like most who serve on juries each and every day, the 12 citizens on this jury took their obligations seriously. They wrestled with the mental state issue, the one that was required for the second-degree murder charge against Marjorie Knoller. Jurors say they saved this task for last.

Jury foreman Don Newton said, "The question of implied malice was a difficult question to decide, but we did decide there was implied malice in her [Knoller's] actions."

The jurors faced a challenging civil assignment, and they completed their task nimbly. With a unique fact pattern before them, they reached a conclusion that fully defined the meaning of criminal responsibility.

In a way, they reflected the prevailing state of mind in America these days, a kind of realization that is spanning the shores. It is the notion that we are legally responsible if, through a series of choices, others are exposed to a life-threatening instrumentality that is within our control.

Twelve ordinary men and women attained something of great significance. They sought what most of us had yearned for since first hearing of the horrible manner in which an innocent young woman had met her death.

In their time of obligation, they reached upward. They grasped at that which is sometimes elusive, but worth the struggle. And they got it ­ one sterling measure of transcendent justice.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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