The attorney for Marjorie Knoller plans to appeal the decision of the 9th U.S. Circuit Court of Appeals that refused to overturn her second-degree murder conviction for the 2001 dog mauling of her lesbian neighbor, Diane Whipple.
Attorney Dennis Riordan told the Bay Area Reporter this week that he plans to file an "en banc" appeal next month. If that appeal proceeds, it will be heard in a "limited en banc" format that includes the chief judge and 10 other justices of the appeals court. A three-judge panel authored the decision handed down February 4.
But that appeal will be an uphill battle. Last year, the appeals court received 796 en banc petitions but only agreed to review 30 of those cases, according to court spokesman David Madden. And of those 30 cases, the court only ruled in favor of the petitioner in 16. Barring a successful appeal, Knoller, 60, will be eligible for parole in November 2020, according to California Department of Corrections and Rehabilitation spokeswoman Krissi Khokhobashvili.
Knoller was sentenced to 15-years-to life for the hallway attack on Whipple. Jurors sided with prosecutors who argued that she and her husband, Robert Noel, knew their dogs were dangerous but did little to mitigate the risk. Noel, 74, was not with the dogs during the attack and was convicted of involuntary manslaughter. He was released on parole in 2003.
Noel declined to comment on the most recent appeals court decision but said that he strongly stands by his wife. In an online chat with the B.A.R., Noel said that he owes his life to Knoller and a good friend.
"I will be with them to my last breath," he said. And reiterating his devotion to his wife, he added, "I'm here after 15 years, not leaving her now."
Knoller and Noel were first arrested in 2001. Knoller's original trial judge, now-retired San Francisco Superior Court Judge James Warren, threw out Knoller's second-degree murder conviction, leaving her with only a conviction for involuntary manslaughter. She was released on parole in 2004 only to be sent back to jail in 2008 after another San Francisco Superior Court judge reinstated the murder conviction after being ordered to review the case by the state Supreme Court.
In Knoller's most recent appeal, Riordan argued that Warren denied Knoller her rights to a vigorous defense when he threatened her defense attorney, Nedra Ruiz, with jail if she made another objection. Warren had clearly run out of patience for Ruiz's very animated courtroom style that included the defense attorney getting down on her hands and knees to reenact Knoller's attempt to stop the mauling.
In the three-page decision, the justices wrote that while Warren was wrong for silencing Ruiz, his action did not constitute a "structural error," that occurs only when there is a "complete deprivation of counsel." The panel wrote that a previous state Court of Appeal ruling "did not unreasonably determine" that Warren's action was harmless to the jury's ultimate finding of guilt.