Glob-a-log

(Convicted attorney Marjorie Knoller)

I don’t have a law degree but I think the judge’s verdict in the following case is wrong:

A judge reinstated a San Francisco attorney’s murder conviction Friday for her dog’s fatal mauling of her neighbor in an apartment building hallway in 2001 and ordered her jailed immediately while she awaits a prison sentence of 15 years to life. Marjorie Knoller, 53, sat quietly in the courtroom while Superior Court Judge Charlotte Woolard discounted her testimony at her 2002 trial and said Knoller had known her dog was potentially lethal when she took the animal out of her apartment without a muzzle.

The 140-pound Presa Canario, Bane, bolted away from Knoller and attacked Diane Whipple, 33, who bled to death from at least 77 wounds. The dog’s 100-pound mate, Hera, charged out of Knoller’s apartment and may have joined in the attack. Knoller “knew her conduct endangered life” and thus was guilty of murder, not merely manslaughter, Woolard said in rejecting a defense request for a new trial.

It must have been a truly horrific thing. Imagine being attacked by one (and maybe two) large and feral dog. Imagine being a friend or relative of the victim and hearing she bled to death from at least 77 wounds. Well, I can’t really imagine any of that – and I can understand that those friends and relatives want to see the owner of the dog(s) punished to the fullest extent of the law.

However, private grief and private rage should never be allowed to rule in court. The law is there to make sure that justice can be done without personal feelings interfering with due process. The law isn’t perfect but it’s all we have as a society, to redress mostly private wrongs and wrong-doings in a formal setting.

Sometimes, it seems, emotions also get the better of our judges – as it looks to have done in this particular case. There’s something reassuringly ‘common sensical’ about the judge’s statement that because the defendant “knew her conduct endangered life, she was guilty of murder, not merely manslaughter.”

This, of course, may sound like common sense but it is still a nonsense and not just because there is a real difference between knowing things COULD go wrong and the certainty that they WILL, even if the judge seems to imply there isn’t.

Anyway, this was, as I already said, a horrible incident – and I’m sure Marjorie Knoller was guilty of gross and, quite probably, criminal negligence but that does not make her a murderer. Let’s look a bit more closely at the term ‘murder’ and how it is defined in the American legal system:

The precise definition of murder varies from jurisdiction to jurisdiction. Under the common law, or law made by courts, murder was the unlawful killing of a human being with malice aforethought. The term malice aforethought did not necessarily mean that the killer planned or premeditated on the killing, or that the killer felt malice toward the victim. Generally, malice aforethought referred to a level of intent or recklessness that separated murder from other killings and warranted stiffer punishment.

California has retained the malice aforethought definition of murder (Cal. Penal Code § 187 [West 1996]). California also maintains a statute that defines the term malice. Under section 188 of the California Penal Code, malice is divided into two types: express and implied. Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” Malice may be implied by a judge or jury “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

Strangely enough, this Californian judge seems to favour the more general interpretation of ‘malice’ over the Californian statute itself.

Be that as it may, in that more general sense, it is still the case that for murder you need intent, or extreme recklessness. We may assume that the judge based his verdict on the latter: If the defendant had been (on trial for) sicking a dangerous dog on someone, there would not be any need for discussion – then the dog would simply have become the weapon of choice in a clear case of murder.

However, if we are saying that what Marjorie Knoller did constituted a form of recklessness that would leave her open to the accusation of murder, then we are truly making some very strange legal history here.

So, yes, we know that a certain type of dog may attack and even kill people, if it is not on a proper leash, but we also know that cars can kill people, that guns can kill people, that an overdose of certain types of proscribed medicine can kill people, etcetera – and any dog owner, car driver, gun owner and those who take certain medicines know that there are laws concerning the use and ownership of all these articles.

However, if you break a traffic law, like not checking all your mirrors before you turn a corner, and someone get killed, does that make you a murderer? If you don’t lock away your gun or your medicine bottle properly and your kid has a fatal accident, does that constitute murder? In all these cases there will have been a level of carelessness, or, as the law calls it, ‘recklessness.’

If, according to this judge’s ruling, walking your dog without a leash can lead to a murder trial, then why not any or all of those fatal incidents mentioned above? For it seems that the judge believes that whenever you break the law and do something that is potentially harmful, you will be seen as having acted with malice aforethought if something does go fatally wrong because of your actions.

I’m not sure this is a healthy, or even a sane legal route to take. Yes, individuals need to take responsibility for their actions – and the law should deal with them if they endanger and kill others through negligent and plain stupid behaviour. So, yes, dog owners, car owner, gun owners and those who have potentially poisonous substances in the house, should ‘operate’ with due care, and, obviously, within the law.

That is one reason that the crime ‘manslaughter’ is on the books. However imprecise the term ‘recklessness’ is in the definition of murder, there still is a clear difference between what is intended and what is, however horrific, accidental – and accidents should not be treated as murder.

You may make the case (and I would agree) that this changes when a person who causes a deadly accident (be it with a gun, or a car, or a dog) is under the influence of alcohol and/or drugs. In that case you could state that by deciding while still sober to make yourself incapable to handle a potential lethal situation you know you will get into at some later point, you are not dealing with an accident anymore. In these cases a judge could (and I think should) use the ‘recklessness’ clause, to turn what would otherwise have been a manslaughter case into a murder trial.

Again, to the relatives and friends of the victim, Marjorie Knoller will always be the person who “murdered” their loved one. I am sure I would have felt the same way if I were in their shoes. That’s why we have the law, though: to do what we could never do individually – which is to deal with matters in an objective and level-headed manner.

Judges are also human, of course – and sometimes they fail to be as impartial and clear-headed as they should be. In this particular case I think the judge was ruled by emotion more than he served the law.

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This entry was posted on Monday, August 25th, 2008 at 12:40 and is filed under Columns, Crime. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.