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It may be another two weeks before San Francisco prosecutors decide whether to file charges against the two lawyers whose dogs mauled Diane Whipple to death, but if they do, criminal lawyers say it could be a wild ride. Publicity over the case could prompt change of venue motions, and the attorneys’ relationship with their adopted son may complicate efforts to obtain evidence about the dogs’ backgrounds. A veteran prosecutor says a criminal case against Robert Noel and Marjorie Knoller “would be harder to try here than Charles Ng.” He was referring to the notorious San Francisco Bay Area serial killer who in 1999 was sentenced to death in Orange County after a long legal odyssey led to a change of venue. Prosecutors are still piecing together evidence relating to the attorneys and the two dogs, Bane and Hera, that killed the Pacific Heights woman in the doorway of her apartment. Authorities want to know what the couple knew about the viciousness and possible attack training of their dogs prior to the Jan. 26 incident. Several attorneys familiar with the investigation say it could lead to second-degree murder charges. Last week, boxes of documents were seized by investigators serving two San Francisco search warrants. One was for the couple’s home, the other for material at California’s Pelican Bay State Prison, where Noel and Knoller’s newly adopted son, Paul Schneider, is housed. Hall of Justice personnel familiar with the documents said the seized material contained “goodies” that could justify second-degree murder charges. “We got a lot of good material that was seized by the Department of Corrections” from the cell of Schneider, a prosecutor familiar with the case said. The seizures were authorized by search warrants issued by San Francisco Superior Court Judge Lenard Louie, who sealed them and issued a gag order in the matter. During a hearing late Wednesday, prosecutors said 11 boxes of documents were taken from Pelican Bay. They said the documents fell into three groups — material seized by corrections officers earlier this month, material seized from the cells of Schneider and inmate Dale Bretches and material seized from adjacent cells. Police are already in possession of material seized from Noel’s and Knoller’s apartment, though the contents of their home office are in the possession of a special master assigned by the court to determine whether the material is protected by attorney-client privilege. Lt. Henry Hunter, who is supervising the police investigation, said the seized documents add to suspicions that Noel and Knoller were aware their dogs were trained to attack or kill. “We have information that might be relevant that Noel and Knoller knew their dogs were vicious,” Hunter said, adding there was “documentation that might show where the dogs were kept [so] we can establish a timeline on the animals.” While the district attorney’s office is uncertain whether a trial would be held in the city, former San Francisco prosecutor and Assistant U.S. Attorney James Lassart said that statements made by Noel and Knoller may prevent them from moving the case to another location. “I don’t know whether they can get a change of venue,” Lassart said. “The Penal Code doesn’t let you go out and generate publicity and then get a change of venue.” Lassart said the television and newspaper interviews the couple has given “puts them in the public eye” by their own doing. He said if the couple is charged, they must proceed to a preliminary hearing in San Francisco. But if a judge decides before trial that publicity would have an adverse impact on potential jurors, then he or she could order the change of venue. “The case could be pending in the superior court for some time, [which] allows for the cooling off of the pretrial publicity,” Lassart said. “It’s amazing how people forget things.” He noted that the prosecution can bypass the preliminary hearing by securing a grand jury indictment that would send the matter directly to superior court for trial setting. Although Bane, the dog that authorities believe caused the death of Whipple, has been destroyed, Assistant District Attorney Kimberly Guilfoyle said she is not concerned that the animal might be a key piece of evidence that has now been lost. Guilfoyle said there are pictures, and the dog is well-described in other documents that could be shown to a jury. However, a prosecutor not connected to the case said it probably would have been better to keep the dog alive. “Do you realize how powerful a piece of evidence that dog would be?” he asked. “You just parade him, sedated, into the courtroom.” The fate of the second dog, Hera, was debated during a three-hour doggie death-penalty hearing Tuesday in which Noel and Knoller pleaded that the dog not be put to sleep. The City Hall hearing — which can be appealed all the way up to the state supreme court — featured a dozen witnesses, but no cross-examination, and provided a gruesome look at Whipple’s mauling. It was also perhaps Knoller’s most emotional public display yet, as she wept while describing the events of that night. Attending the hearing were more than 50 people, and almost as many media representatives — everyone from the tabloid news program “Inside Edition” to major national newspapers. Whipple’s domestic partner, Sharon Smith, and her attorney, Michael Cardoza, did not attend, but investigators from the police department were among the audience. The hearing also offered a preview of sorts if Hallinan does ever bring charges against Noel and Knoller. What Hera “prosecutor” Capt. Vicki Gulbech of the city’s Animal Care and Control office had to show the hearing officer is not far from what Guilfoyle and her co-counsel, homicide prosecutor James Hammer, will have to show a jury to prove the couple criminally liable: that the dogs have a history of violence and viciousness. Witness after witness reported threatening or violent incidents. One man said he was bitten “on the butt,” while others reported that their pets were attacked or that they felt intimidated by the dogs. Noel, with monotonous patience, disputed each incident, except in one case where the witness couldn’t say which dog had started a fight. None of the witnesses told stories predating the dogs’ arrival in San Francisco, even though a Northern California caretaker — that Noel alleges mistreated the dogs — said Schneider’s dogs had killed several animals around her property. No decision was made on Hera’s fate, but even if authorities decide the dog must be destroyed, it could be kept alive until the case is resolved. “We treat all of the dogs in cases like these as evidence,” Gulbech said. “It’s being handled sensitively.” Meanwhile, legal experts said the search of the couple’s home and Schneider’s cell is complicated by the attorney-client privilege that the trio may enjoy because of cases litigated on Schneider’s behalf. The seized documents are currently being reviewed by a court-appointed special master, Michael Osborne of Dryden, Margoles, Schimaneck, Kelly & Wertz. Osborne said he could not comment on what his review has found. In cases where an attorney’s files are the subject of a search warrant, judges must choose a lawyer from a State Bar list to serve as a special master or referee. That lawyer then sifts through the materials to separate privileged materials from discoverable ones. The point, said the State Bar’s Jerome Braun, “is to make sure that confidential records don’t get into the hands of the prosecution.” There is no compensation for the work. Attorney-client privilege expert Paul Rice said the only pitfall to avoid while searching for information about the history of the dogs is steering clear of information about prior cases where Noel represented Schneider, including suits against the California Department of Corrections. “If, in fact, [the documents] related to a dog and the violent nature of the dog, that would have nothing to do with attorney-client privilege,” said Rice, a professor at American University’s Washington College of Law. “What they are seeking is not privileged information. It’s mixed up with privileged information.”

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