Criminal
Jun. 20, 2002
Warren Tries to Strike a Balance
SAN FRANCISCO - Minutes after Marjorie Knoller's second-degree murder conviction was set aside Monday, an indignant prosecutor James Hammer waved Knoller's trial transcript in front of the press and recited the judge's own previous assertion that there was sufficient evidence to convict Knoller of murder.
Denying the defense's pro forma motion to dismiss the charges against Knoller, San Francisco Superior Court Judge James Warren had said at trial, "I think an appellate court could very easily find that all of the elements of all three crimes ... have been met."
That was in March. Three months later, Warren changed his mind.
"I remind you, those were his words," Hammer said Monday. "I ask you, what changed from the close of our case to today?"
Probably nothing. Warren thinks Knoller's husband, Robert Noel, is the one most responsible for the death of Diane Whipple. He said as much in court Monday and expressed disappointment that the grand jury that indicted the husband-and-wife attorneys didn't see it that way.
In setting aside the murder conviction, Warren said he believed Knoller's testimony that she had no idea her dogs were capable of killing.
Knoller and Noel were convicted in March for the Jan. 26, 2001 mauling death of Whipple by their two dogs. They were each found guilty of involuntary manslaughter and keeping an animal that kills a person. Knoller was also found guilty of second-degree murder.
Noel was sentenced Monday to four years in prison, but probably will be free by next summer. Warren will sentence Knoller on July 15 unless prosecutors persuade him to reconsider his ruling.
Monday, Warren was ostensibly responding to arguments made two weeks ago by Knoller's lawyer, Dennis Riordan. But a number of Bay Area lawyers believe Warren never considered the case against Knoller worthy of a murder charge and never thought she deserved to spend life in prison for what happened to Whipple.
By waiting until now to make that known, however, Warren left the question in play for an appellate court and gave prosecutors a chance, however slight, to prove him wrong.
An appellate court could either validate Warren or take the responsibility of Knoller's life sentence out of his hands.
A former San Francisco prosecutor who is now a criminal defense attorney said Tuesday that judges who disagree with the charges against a defendant will "wait and hope that a jury will bail them out. To have concluded that there was no evidence to allow a reasonable jury to convict during the trial would have caused much more grief."
Had Warren granted what's known as an 1118 motion, after a section of the state's Penal Code providing for dismissal of a case for lack of evidence during the trial, the murder charge would have been dead. Double jeopardy attaches when a charge is dismissed for lack of evidence. Moreover, there is no appellate mechanism to challenge the ruling.
Legal observers interviewed Tuesday agreed the double jeopardy rules mean Knoller can't be tried again for second-degree murder. However, they said, prosecutors can ask an appellate court to reverse Warren and reinstate her conviction.
That's small comfort to Michael Cardoza, the lawyer pursuing a wrongful death claim against Knoller and Noel on behalf of Diane Whipple's surviving partner, Sharon Smith.
"I can't claim to know what Warren was thinking, but what epiphany did he have between the verdict and yesterday?" Cardoza wondered Tuesday. "He was hoping the jury would do the job for him."
Cardoza said his frustration with Warren isn't about the decision itself, but rather with how it was made.
"If he thought he was being altruistic, that's what a judge is supposed to do - he's supposed to do what's right," Cardoza said.
"But he shouldn't worry about the appeal process. If he really believes there's not enough evidence, I'd have much more respect for him if he made that ruling during the trial. And [Knoller and Noel] can always appeal from the joint."
But if Warren was looking for middle ground between letting Knoller walk out of prison in a few months or not at all, Monday's ruling was the one way to accomplish that.
"It was an act of enormous courage," said a retired judge who is also a former criminal defense lawyer, speaking on condition of anonymity. "He's created the opportunity for a plea bargain that can satisfy the bloodlust of the victims and an overall sense of proportionality."
Hammer, the deputy who led the People's case, and San Francisco District Attorney Terence Hallinan did not return telephone calls Tuesday.
The retired judge said Warren was caught up in a kind of Hobson's Choice: The only sentencing discretion he had with Knoller was to put her behind bars for life or grant her probation.
"One of the problems we have is that we've created this Draconian penal system that doesn't permit shades of gray, and this is a shades-of-gray case," he said. "On the other hand, with this kind of ruling, why have a jury trial at all? And it doesn't look to me like he ruled on a legal issue. Weighing the credibility of [Knoller] is a factual issue for the jury."
That is the issue prosecutors would have to pursue before the 1st District Court of Appeal. Judges typically are given wide latitude by appellate courts in this area, lawyers said, but an appellate panel might find that Warren had overstepped his bounds in this case.
"It seems odd to me, at least, that he made this decision on a credibility issue," the former judge said.
Cardoza, however, wasn't very hopeful an appeal would save the day.
"The DCA will often try to think of a way to not reach the merits of a case, and the court might say that it won't interfere with a factual determination of a judge," he said. "I think Warren has muddied the waters so much we'll never get an answer as to whether this was second-degree murder."
Matthew King
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