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In a move that took prosecutors by surprise on Monday, the judge in San Francisco’s infamous dog-mauling case struck down the second-degree murder conviction of attorney Marjorie Knoller. But San Francisco Superior Court Judge James Warren imposed the maximum four-year term on Knoller’s husband, attorney Robert Noel, for his manslaughter conviction. Warren ruled that Knoller may not have known there was “a high probability” that her two presa canario dogs, Bane and Hera, would maul Diane Whipple to death on Jan. 26, 2001. “When you take everything as a totality, the question is � did she know when she walked out the door that morning that she would kill someone?” Warren asked. “The court finds the evidence does not support it.” The judge’s ruling is the latest twist in a grisly case that has captured national headlines. The judge also granted Knoller’s attorneys their motion for a new trial on second-degree murder. Prosecutors were uncertain they could pursue another murder trial, since Warren let stand Knoller’s conviction on manslaughter and keeping a mischievous dog charges, thus raising the issue of double jeopardy. District Attorney Terence Hallinan said outside the courtroom that he would ask the judge to reconsider his ruling. Warren set July 15 for hearing on that motion. “This didn’t come quite to the conclusion we expected,” Hallinan said. “Whether we can try it or not, we’re not really clear. It depends on a number of factors of whether jeopardy has or has not attached.” Hallinan also said if the judge lets his ruling stand, his office would ask the 1st District Court of Appeal to reverse it and argue that Warren abused his judicial discretion. A jury convicted Knoller and Noel in March, following a two-month trial in Los Angeles. The case was moved there because of pretrial publicity. A San Francisco grand jury had indicted Knoller on murder, manslaughter and mischievous dog charges, and Noel on the latter two charges. Hallinan had not asked for a murder indictment, but the grand jurors issued one on their own against Knoller. Attorney Donald Horgan, co-counsel with Dennis Riordan, whose office is handling Knoller’s appeal, said the judge’s ruling was correct. “It was clearly a difficult and courageous decision � in view of the publicity and the politics surrounding the case,” Horgan said. Outside the courtroom, lead prosecutor James Hammer said the judge’s decision contradicts statements he made during the trial. After the prosecution had concluded its case at trial, Hammer said, defense attorneys had asked the judge to throw out the charges on grounds of insufficient evidence. Warren refused. Hammer then read from a transcript quoting Warren’s words denying the defense motion. “I think an appellate court could very easily find � that the elements of the crimes charged are met,” Warren said. “And with respect to Miss Knoller, I believe the court of appeal could find that the jury had ample evidence to convict the defendant of second-degree murder,” the judge added. “My question is: What changed from the close of our case until now?” Hammer said. Although Warren sentenced Noel, he postponed the sentencing of Knoller until the issue of the second-degree murder charge is resolved. He denied Noel’s request for probation and instead sentenced him to the aggravated term of four years. The judge said he decided on the maximum term because Noel committed perjury during his testimony before the criminal grand jury. Hallinan said that with credit for time served, Noel would spend 384 days in state prison and then face five years on parole. He would also have to pay a $5,000 fine and restitution of $6,800 to Whipple’s family. Bruce Hotchkiss, Noel’s defense attorney, said he would appeal the sentence and fines. After Warren kicked out the second-degree murder charge, Sharon Smith, Whipple’s partner, addressed the court. She was not happy with the judge. “Justice was done and now it’s being undone,” Smith said, adding that the couple never expressed remorse for the killing of Whipple. “You were too busy being lawyers to be human,” she said, staring coldly at Noel and Knoller. “You fail to accept that your actions killed a person.” Warren acknowledged in court that the mauling death of Whipple touched a nerve with San Franciscans. “I believe, Mr. Noel and Ms. Knoller, that you are the most despised couple in the city,” the judge told them. “I don’t think anybody likes you.” Noel sat at the defense table writing on legal-size paper during most of the hearing. Knoller sat motionless during the judge’s comments, her eyes downcast.

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