Defense Attorney Matthews Bark | Attorney Asks for New Trial

Source    : .Sfgate
By        : Bob Egelko
Category  : Florida Attorney Matthews Bark

A San Francisco woman who was convicted of murder after her unmuzzled dog fatally mauled a neighbor in an apartment corridor in 2001 should get a new trial because the judge effectively muzzled her attorney during the prosecutor’s closing argument, a defense lawyer told a federal appeals court Monday.
At a “critical stage of the trial,” Marjorie Knoller’s lawyer was “gagged by the court, threatened with jail” if she voiced objections to the prosecutor’s argument, attorney Dennis Riordan told a panel of the Ninth U.S. Circuit Court of Appeals in San Francisco.
That violated Knoller’s constitutional right to effective legal assistance, Riordan told the three-judge panel. The state’s lawyer, Deputy Attorney General Peggy Ruffra, conceded the trial judge had been wrong but said the error had no effect on the jury’s verdict because the evidence of Knoller’s guilt was strong.
The victim, Diane Whipple, 33, the women’s lacrosse coach at St. Mary’s College, was mauled in a hallway of her Pacific Heights apartment building in January 2001 and bled to death from 77 wounds.
Knoller, an attorney, had been walking her dog Bane, a 140-pound Presa Canario, on the roof of the building and had returned with him to the corridor when he bolted away and attacked Whipple. The dog’s 100-pound mate, Hera, charged out of Knoller’s apartment and may have joined the attack.

Knoller’s husband, attorney Robert Noel, was convicted of involuntary manslaughter for leaving the dogs with Knoller, knowing she could not restrain them. But the jury convicted Knoller of second-degree murder, agreeing with prosecutors that she had acted with a conscious disregard for human life because she knew Bane was dangerous from past incidents but failed to muzzle him or try to save Whipple during the attack.
She was sentenced to 15 years to life in prison, which she is still serving. The trial judge, James Warren, reversed her murder conviction, saying he believed her testimony that she had no idea Bane could kill anyone, but the conviction was reinstated on appeal and upheld by state courts.
At Monday’s hearing, Riordan focused on the final phase of the trial, when Warren, who had previously rebuked Knoller’s lawyer for one of her objections, told the attorney his client could be jailed if she voiced any objections to the prosecutor’s argument. The prosecutor then asked jurors to imagine themselves in Whipple’s shoes as she was being charged and mauled — an argument that is forbidden by California law but was not challenged by Knoller’s attorney.

It was “a tremendously prejudicial closing argument” and the judge’s order deprived Knoller of a fair trial, Riordan said. He conceded that Knoller had been negligent and was guilty of involuntary manslaughter, but said there was no credible evidence that she knew the dogs were potentially lethal.
Ruffra countered that more than 30 witnesses testified Knoller had been present when her dogs attacked other people in the past. “These dogs were huge,” the state’s lawyer said. “They were bred to be aggressive.”
Judge Margaret McKeown said Monday that she was concerned about the impact of silencing the defense lawyer at the close of the trial. But another panel member, Judge Johnnie Rawlinson, questioned whether Knoller was “completely deprived of the assistance of counsel” when the judge limited her lawyer’s comments.

(Source : http://www.sfgate.com/crime/article/Attorney-asks-for-new-trial-in-2001-dog-mauling-6636476.php )