WAS IT MURDER?
A year ago, Diane Whipple was mauled to death by her neighbor's dog. Now, prosecutors face a tough task when they ask a jury to decide:
Jaxon Van Derbeken, Chronicle Staff Writer

Tuesday, January 22, 2002

Two-year-old James Soto strayed into a marijuana plot in Morgan Hill and was quickly mauled to death by a fight-trained pit bull while its owner sat in his home, downing beer and watching football.

Ten-year-old Cash Carson was killed by a pit bull kept by a Barstow-area man who was so afraid of the dogs he was minding that he used a broomstick to push their food to them.

Both cases were heartbreaking. Both involved dogs that were vicious and whose keepers clearly knew it. But in the end, juries rejected murder in favor of lesser charges that brought little prison time.

Those outcomes hang over San Francisco prosecutors as they head to Los Angeles this week to pick the jurors who will decide whether the dog-mauling death of a Pacific Heights woman merits a second-degree murder conviction for Marjorie Knoller and a manslaughter conviction for her husband, Robert Noel.

Jury selection is to begin Thursday, two days before the one-year anniversary of the attack on the couple's neighbor, Diane Whipple, a 33-year- old lacrosse coach, in the hallway of their apartment building.

Knoller, 46, was walking a 120-pound Presa Canario named Bane and another dog when Bane lunged at Whipple, gouging wounds out of her neck that proved fatal. Noel, 60, was out of town, but prosecutors say he should have known the dog was a threat.

No one has ever been convicted of murder in California for a dog attack, and some legal experts and even San Francisco prosecutors have their doubts that Knoller will be the first.

ACCIDENT OR MURDER?

"The odds are stacked way against us on murder," prosecutor James Hammer said in court last week.

"It's going to be difficult," said Eric Safire, a veteran San Francisco defense lawyer. "In the absence of all the statements and extraneous matters in this case, I don't think they would even try to prove murder -- it smacks of an accident."

Kenneth Phillips, a legal expert in dog-bite cases, says flat out: "This just isn't a murder case -- it never was."

A jury need not find an intent to kill in order to convict of second-degree murder -- only that a defendant did something "inherently dangerous" with a "conscious disregard for human life."

The prosecution hopes to convince jurors that the defendants knew that Bane and Hera, a second Presa Canario the defendants kept in their apartment, were "time bombs" and recklessly ignored the risk. The defense says that Whipple's death was a horrible accident and that Knoller and Noel are blameless.

It's their behavior -- in particular, their seeming callousness toward Whipple before and after her death -- that prosecutors hope will make their case.

For starters, there's the 18-page letter the couple sent to prosecutors early on. It was signed by Noel on behalf of his wife -- they are both practicing lawyers -- and suggested that Whipple might have brought on the attack because she was wearing a pheromone-based perfume, or maybe, they speculated, because she was taking steroids.

There's another letter from Noel, written shortly before Whipple died, that referred to her as a "timorous little mousy blonde" in describing a run-in she had with the dogs.

Then there's Knoller's account before a grand jury that as Whipple lay dying, she had briefly tried to stop the bleeding and then concentrated on finding her keys. She did not call 911.

CONNECTION WITH INMATE

Beyond that, prosecutors hope to highlight the couple's relationship with Paul "Cornfed" Schneider, the 39-year-old lifer at Pelican Bay State Prison whom Noel and Knoller adopted three days after Whipple died.

Prosecutors say Schneider and his cellmate -- both members of the Aryan Brotherhood prison gang -- working with Noel and Knoller, used intermediaries to raise Presa Canarios they hoped to sell as attack dogs.

The prosecution has hinted at some sort of sexual relationship involving the couple, the inmate and perhaps the dogs, although it's unclear whether any of that can be put before a jury.

"From what I heard of that case, (San Francisco prosecutors) have some pretty good evidence," said Steve Sinfield, the prosecutor in the Barstow dog- mauling trial. "If I had the choice, I'd take that one."

But Phillips said the bizarre events and the personalities involved in the Whipple case would collide with the limits of the law.

The grand jury decided to indict Knoller for murder, Phillips said, only because "the event was so horrifying, the attitude of the defendants so apparently criminal and cold-hearted." Now, he said, "the prosecutors are stuck with a string of sensitive legal issues that could end up resulting in a successful appeal."

Dale Sanderson, the Santa Clara County prosecutor who handled the 1989 case against Michael Berry in the mauling of little James Soto, says jurors are reluctant to find defendants guilty of second-degree murder for simply failing to act, even if the risks seem apparent.

Berry wasn't very sympathetic. The Morgan Hill man had been part of an underground dogfighting ring and had trained the animal that killed the boy.

TOUGH DECISIONS

"But morally, there were jurors who had a difficult time sending Berry to prison for life for the actions of his dog while Mr. Berry was watching a football game on TV, drinking beer in the front of his house," Sanderson said. Instead, they convicted Berry of involuntary manslaughter.

Sinfield, the prosecutor in the mauling two years ago that killed Cash Carson near Barstow, says the defendant in his case, James Chiavetta, was afraid of the two dogs he let roam on property that was not completely fenced in.

The boy was killed when he wandered onto the land to build a fort; Chiavetta was inside napping. Sinfield argued that Chiavetta's negligence amounted to an intentional act that led to murder, but the jury came back with involuntary manslaughter.

"The main problem with our jurors was we didn't have any prior dog attacks, " Sinfield said. "They had problems coming to the conclusion that he knew these dogs would have killed someone if he had let them loose."

Becky Carson, the boy's mother, said one of the jurors had later told her there were four jury members who thought Chiavetta was totally innocent.

THE LIKABILITY FACTOR

Some observers doubt a jury will have any such sympathy for Knoller and Noel.

George Walker, a defense attorney who briefly represented Knoller, says the defendants have been their own worst enemies from the start. He expects them to turn off jurors if they take the stand, something he says they have to do.

"The real problem I see is the attitude of the defendants themselves," he said. "I just think it's going to be very difficult to control either one of them. You can fool the jury in one day, but you are not going to fool them after two days -- jurors are extremely perceptive.

"They are going to read these people like ABC."

What's more, Sanderson said, jurors will be "extremely hard-pressed to walk away from the dead body of Diane Whipple without finding anything."

KANSAS CASE RULED MURDER

Although California prosecutors have never won a murder conviction for a dog killing, there is precedent elsewhere. In 1998, a Kansas jury found a 27- year-old woman guilty of second-degree murder after she allowed her rottweilers to get out of her yard and three of them killed an 11-year-old boy waiting for a school bus.

Sabine Davidson had no criminal record, but didn't come off well before the jury. Prosecutors showed that she had ignored warnings to control her animals.

"She knew these dogs had been aggressive before," Chris Biggs, the prosecutor in the case, said. "Our defendant, throughout the trial, whether she was remorseful or not, appeared indifferent."

Safire and other defense attorneys say that if they were defending the San Francisco couple, they would point out that the Presa Canarios weren't roaming uncontrolled before the attack on Whipple.

"Ms. Knoller did not leave that dog alone," Safire said. "She is not trying to protect property, she is not leaving the agent of death alone -- she's taking it out to go to the bathroom, for Christ's sakes, with the leash in her hand."

But Safire acknowledges that a jury's disdain for the defendants could be overpowering.

"That's what largely is at play here," he said. "I don't think you should be convicting people of murder because of the (unlikability) factor. I don't think I would socialize with these people. But that doesn't make them murderers."

THE DOG MAULING CASE: A CHRONOLOGY

Jan. 26, 2001: A 120-pound Presa Canario named Bane lunges at Diane Whipple in the hallway of her apartment building in San Francisco's Pacific Heights. The 33-year-old lacrosse coach suffers deep bites to her neck and dies five hours later. The 3-year-old dog is destroyed. Hera, a second Presa that was in the hallway, is seized. Authorities ask the dogs' keeper, Marjorie Knoller, if Bane had been aggressive before. "Not to humans," she replies.

Jan. 28: Authorities say they are looking into whether Knoller and her husband, Robert Noel, both defense attorneys in San Francisco, should face criminal charges.

Jan. 29: Prison officials say Knoller and Noel were keeping the dogs for two Pelican Bay inmates they represented, Paul "Cornfed" Schneider and Dale Bretches. The inmates are described as members of the Aryan Brotherhood white supremacist gang involved in a scheme to breed and sell vicious dogs. A woman who raised seven of the inmates' dogs on her farm in Trinity County, Janet Coumbs, says Schneider was pleased to hear that Bane had attacked livestock but complained that the dog was not vicious enough.

Jan. 29: As reports of earlier run-ins with Bane and Hera flood in, Noel and Knoller formally adopt Schneider, who is serving a life sentence for aggravated assault and attempted murder.

Jan. 31: Noel, after consulting with Knoller, sends a letter to prosecutors suggesting Whipple put herself in harm's way, claiming that the dog might have been drawn to her because of steroids or a pheromone-based fragrance.

Feb. 24: Schneider calls Whipple's death a "horrible nightmare" and denies he was raising dogs to attack anyone, although he said he did not want "sissy dogs."

March 12: Whipple's partner, Sharon Smith, files a wrongful death suit against Knoller and Noel, raising the issue of whether a domestic partner can bring such a case.

March 27: A grand jury indicts Knoller on a charge of second-degree murder.

She and Noel are both charged with involuntary manslaughter. Her bail is set at $2 million and his at $1 million. The couple are arrested at a friend's Red Bluff (Tehama County) home and eventually plead not guilty.

July 27: A San Francisco judge says Smith can proceed with her wrongful- death suit.

Aug. 31: Judge James Warren cuts Knoller's bail in half, to $1 million. Still, neither she nor Noel can raise bond.

Sept. 5: Schneider and other suspected members of the Aryan Brotherhood are indicted on charges of orchestrating killings from behind bars.

Sept. 14: Warren agrees to a defense motion to move the trial out of San Francisco because of extensive publicity. He later picks Los Angeles as the new site.

Sept. 18: Testimony from March grand jury hearings is released. Knoller is portrayed as having searched for her keys as Whipple bled to death. Noel concedes he referred to Whipple as a "timorous little mousy blonde" in a letter to Schneider describing a run-in with the "dynamic duo" - the two dogs -

two weeks before the attack.

Jan. 3, 2002: Knoller and Noel ask to be tried separately, saying a common jury may blame both of them for individual actions or comments.

Jan. 15: Warren rejects separate-trials request.

Thursday: Jury selection scheduled to begin in L.A. .

©2002 San Francisco Chronicle

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