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Although San Francisco attorney Marjorie Knoller was convicted of second-degree murder in the dog-mauling death of Diane Whipple, her best appeal issue may be whether there was sufficient evidence for such a verdict, legal experts say. “Since it is the first murder conviction involving an animal in California, as a matter of law there is a question whether the evidence was sufficient to sustain a verdict of second degree,” said Jeffrey White, who teaches trial advocacy at University of California, Berkeley’s Boalt Hall School of Law and is a former prosecutor. Criminal defense attorney James Collins, who has represented murder defendants, said he doubted there was sufficient evidence for the charge. “I don’t think so. It’s real surprising.” Knoller and her attorney husband, Robert Noel, were convicted on all counts by a Los Angeles jury that had deliberated about 11 hours over two days. Experts said the defendants may have additional issues to raise on appeal, such as prejudicial evidence involving the Aryan Brotherhood, admitted by San Francisco Superior Court Judge James Warren. “The most obvious thing is that some of the prosecution’s evidence shouldn’t have come in,” such as the defendant’s association with white supremacist inmates, said Evan Lee, who teaches criminal law at University of California Hastings College of the Law. “[Defense attorneys] will probably argue that it was more prejudicial than probative.” Hastings law professor Rory Little said it also could be argued on appeal that 30 prosecution witnesses telling of their encounter with the two dogs, Bane and Hera, was “cumulative.” Little also said it could be questioned whether the bloody photos of Whipple were prejudicial and should have been admitted into evidence. Appellate attorney Dennis Riordan, meanwhile, raised the unique issue of whether the verdicts were “illegal” in the form they were presented. Riordan said because jurors first convicted Knoller of manslaughter and keeping a mischievous dog, they would have had to acquit her on the greater crime of murder. “You can’t convict on manslaughter and on second-degree murder,” he said. “What should have happened is if the judge saw the involuntary conviction, he should have said, ‘I can’t accept this verdict. Give me one or the other.’” Riordan said that in a 1988 case, People v. Kurtzman, 46 Cal.3d 322, the state supreme court set out the California rule that “you cannot accept a verdict on the lesser charge without an acquittal on the greater.” “It’s clear a mistake was made,” Riordan said. “What the resolution will be is unclear.” A San Francisco judge said Riordan could be right. “It’s a possible possible,” the judge said. Little, who teaches criminal law at Hastings, raised another possible appellate issue of whether Warren interfered with Ruiz’s advocacy. He cited the time the judge told Ruiz to sit down when she objected during prosecutor James Hammer’s closing argument. “A lawyer who is flamboyant is always hoping to stimulate the judge into an improper action,” said Little. “But I didn’t see Judge Warren do anything outside his discretion.” But one bench colleague did. “You can’t cut off an objection by an attorney,” the San Francisco judge said. Knoller and Noel’s conviction by a jury of seven women and five men concluded a yearlong saga following the mauling death of Whipple on Jan. 26, 2001. The case was moved to Los Angeles because of pretrial publicity. Its sensational nature was underscored in court by the histrionic actions of Knoller’s defense attorney, Ruiz. Noel’s attorney, Bruce Hotchkiss, stayed low-key, as did his client throughout the trial. Noel did not testify. Although Knoller faces a mandatory 15-years-to-life term, Judge Warren must decide whether to impose on Noel the maximum term of four years for the manslaughter conviction or three years as a midterm. Noel has no prior convictions, which could work in his favor. Under sentencing guidelines, Noel will receive credit for the near-year he has served in county jail. If he gets the mid-term of three years, he will have to serve nine more months, lawyers said. If Warren imposes the four-year term on May 10, Noel would probably have to serve at least another 15 more months. An hour after their convictions, Noel and Knoller were placed by the State Bar on “interim suspension,” which means they cannot practice law. George Fisher, a former prosecutor who teaches criminal law at Stanford Law School, said Noel and Knoller probably didn’t profit from the way their cases were handled. “The last thing these defendants needed was a weird defense and, unfortunately, that’s what they got,” Fisher said. He also said that it’s unlikely that Knoller’s appellate attorney could raise the issue of ineffective assistance of counsel. “These are hard to win,” Fisher said, since the lawyer must have failed to do something, such as introducing exculpatory evidence or calling a key witness. He said courtroom histrionics such as Ruiz exhibited don’t meet that standard on appeal. Boalt Hall’s White said that Hotchkiss’ strategy to keep a low profile was a good one, although it ultimately failed. Hastings’ Lee was critical of Ruiz’s questioning of Sharon Smith, when she asked if there had been a complaint made about the dogs that may have saved her partner Whipple’s life. “The thing that stands out was how Nedra Ruiz really blundered when she went after Sharon Smith,” said Lee. “I really cringed.” He also said Ruiz’s courtroom behavior, such as crawling around in the well, detracted from her defense — a sentiment that was echoed by jurors after the verdict. “She stands behind her client, but I can’t imagine she helped her client by beating up Sharon Smith,” Lee added. “The prosecutor got lucky that he drew this woman on the other side who was out of control.” Miguel Mendez, who teaches trial advocacy at Stanford, said Ruiz did not elicit the kind of testimony that was necessary from her client to counter what “the prosecution was trying to show.” “I think she was trying to show that her client was not cold-hearted,” Mendez said. Jurors said after the verdicts were read that Ruiz did not play a major role in their deliberations. But they were aware of her. “I believe what she had to work with was hard,” said juror Jeanne Sluiman. “She is very dramatic, and maybe that’s what she felt was needed.” Hastings’ Little also came to Ruiz’s defense, saying that she “did not do as bad a job as people seem to believe. “I think she put on a very aggressive defense that tested the prosecution’s evidence,” he added. “I have to compliment Nedra Ruiz for taking this case. She had a very unpopular client.” The Associated Press contributed to this story.

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