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Burden of Proof

Should Dog Owners be Held Reponsible for Mauling Death?

Aired March 29, 2001 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, HOST: Hello, and welcome to BURDEN OF PROOF: the arraignment for the owners of two dog in a vicious mauling case has been postponed until April 13. Marjorie Knoller and Robert Noel, both lawyers, surrendered to police late Tuesday after a San Francisco grand jury returned indictments against them in connection with the January 26 mauling of 33-year-old lacrosse coach Diane Whipple.

(BEGIN VIDEO CLIP)

TERENCE HALLINAN, SAN FRANCISCO DISTRICT ATTORNEY: It's tough to prove, but it was a call by the grand jury after hearing some 39 witnesses, including the unique opportunity to hear the two defendants testify. We went in thinking we had a manslaughter and a mischievous dog statute; we came out of it with a murder.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

MARJORIE KNOLLER, DOG OWNER, MURDER DEFENDANT: It's not as if he was barking at her or being aggressive towards her. That only happened after, unfortunately, Ms. Whipple hit me in my right eye; and then he became aggressive towards her.

(END VIDEO CLIP)

(BEGIN VIDEO CLIP)

SHARON SMITH, VICTIM'S PARTNER: It's important that they pay for their crime because this is an awful crime; this is a crime that didn't have to happen. They brought these dogs into this city and to this apartment building, where they did not belong, and put all of us in danger.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

COSSACK: Hello and welcome again to BURDEN OF PROOF. Joining us today from our San Francisco bureau is Sharon Smith, the partner of the victim in this case -- the tragic death of victim Diane Whipple along with Sharon's attorney, Michael Cardoza. Also in San Francisco, criminal defense attorney William Osterhoudt. Here in Washington: Brian Jones (ph), criminal defense attorney Bernard Grimm and Kelly Sweeney (ph). In the back: Bridget Carper (ph) and Elizabeth Dana (ph).

But first, let's turn to CNN justice correspondent Kelli Arena, who's following us with a breaking news story.

Kelli, there's been an arrest in France; tell us about it.

(AUDIO GAP)

KELLI ARENA, CNN JUSTICE CORRESPONDENT: ... has been arrested and is being detained in France. He's wanted in connection with shooting of an abortion doctor in Buffalo, New York back in 1998. Kopp was indicted and charged with murder. He also faces the federal charge of violating the FACE law -- the Freedom of Access to Clinics Entry Act. Both of those charges carry a life sentence.

He should be brought back here; we should be hearing more from the FBI at 4:00 at a press conference today. Kopp also faces charges in Canada for the attempted murder of another doctor who performed legal abortions there as well. If you remember, back in 1998 Kopp was identified because he had left his car abandoned by the doctor's home before the shooting took place. And some DNA evidence from a strand of hair linked him to the scene.

He has been wanted for two-and-a-half years; a happy day for law enforcement and, as I said, we'll provide details as we get them, Roger.

COSSACK: All right; Kelli Arena giving us an update on the arrest of the defendant -- of suspect James Kopp, who is suspected in the shooting of Dr. Barnett Slepian.

Let's go now to San Francisco. Joining me now is Michael Cardoza and Sharon Smith. Sharon, you are bringing a lawsuit -- well, along with Michael's assistance, in this case. Tell me the lawsuit that you're bringing and tell me why you're bringing it.

SMITH: The lawsuit that we're bringing is wrongful death suit. And the reason that we're bringing this lawsuit is I want to do everything I possibly can to make sure that everybody that is responsible for this crime, which did not need to happen, is going to be held accountable for this.

COSSACK: Michael, this is an unusual lawsuit, and in some ways it's breaking new legal patterns. Tell us about this.

MICHAEL CARDOZA, SMITH'S ATTORNEY: Well, there's no question about it -- under the unlawful death statute in California only certain people have standing to bringing a lawsuit, one of those nominated classes is spouse, but it doesn't include same-sex spouse. And that's going to be the issue in our case -- whether Sharon has standing to bring the case. But we're also bringing a survivor action that will run on a parallel track.

COSSACK: Now, when you say a survivor action, isn't that usually limited to some -- a spouse?

CARDOZA: No, it's not limited to spouse. It -- see, what the courts do, the probate courts denote someone or appoints someone to be administrator, for lack of a better word, of the estate. Then that person brings a survivor action on behalf, in this case, of Diane Whipple. When any money comes out of that, it then guess into the estate; and since Sharon is the sole beneficiary of the will, the money will be distributed to her. And as Sharon has said, all that money will go into the Diana Lexis (ph) Whipple foundation.

COSSACK: Sharon, tell us about Diana Whipple; tall us about what kind of a person she was and tell us about your relationship with her.

SMITH: Diane was an incredibly spirited woman, very fun-loving, generous, thoughtful and also a world-class athlete. She was an elite runner, training for the '96 Olympics, and a World Cup lacrosse player.

COSSACK: And how long did you know her, and were you a lacrosse player? I mean, what was -- tell us about your relationship with her.

SMITH: We were -- we met up through a lacrosse friend, and I met her February of '94 and we really kind of celebrated our anniversary the day that we met. We just immediately became friends and close and lived with each other six-and-a-half years.

COSSACK: Michael, what do you think your chances are in this new kind of action that you're bringing which, as you indicated, is usually limited to only a spouse and in this situation, obviously it would be a new form of recovery, certainly in California. What do you think your chances are?

CARDOZA: I think they're wonderful. I'll tell you, there's been such an outpouring from around the country because, out of this horribly tragic situation has come, as some people call it, our common humanity. You see someone like Sharon and as I've said many times, you couldn't go to Hollywood and say give me a victim and say "give me a victim that would be perfect for a case." And certainly Sharon is just a wonderful, loving, law-abiding person, as Diane was.

So what this does, it brings to people, the country -- the people that are involved, the people that suffer because of what I call the unconstitutionality of our law, and the unfairness of it, saying that no, you're a same-sex partner, you didn't get to bring this, even though you've spent seven years with a partner, or 15 or 20 in some cases.

COSSACK: Well, Michael, let me just go ahead as a lawyer and sort of play devil's advocate here, but the law is clearly against you. And so when you go to court, I'm sure the other side will file what we lawyers call a demur saying, look, that isn't the law, you can't recover under that theory. Do you expect, then, to challenge the constitutionality of the way the law is written?

CARDOZA: Absolutely. We will take it as far as we can take it; and we intend to fight it. The National Center for Lesbian Rights is co-counsel with us, and they've done a wonderful job to date, and we plan on fighting that lawsuit as far as we can take it and hopefully get the law changed in our courts. And as you know, in California we have AB-25, that's passed the assembly committee already.

COSSACK: All right, Michael Cardoza and Sharon Smith, thank you very, very much for joining us.

Let's take a break. When we come back, we're going to find out more about the two people who are charged in this case: about the prosecution, the defense and what we expect next. Stay with us.

(BEGIN LEGAL BRIEF)

The U.S. Supreme Court heard arguments Wednesday focusing on copyright protections in a new media and technological era. A group of freelance writers filed a lawsuit claiming copyright infringement after that work for media companies was duplicated in online and CD- ROM databases.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

COSSACK: We're back, and we're talking about the tragic, tragic story out of San Francisco about the two vicious dogs allegedly killed Diane Whipple. And we're talking now with the district attorney who has brought charges along with the grand jury in this case, Terence Halinan from San Francisco.

Terence, one of the questions that people are asking, certainly lawyers are asking, is the second-degree murder charge that was brought against Ms. Knoller. I mean, that seems to be a little on the high side. Not to say that this isn't a vicious crime. But, you know, do you really think that you can prove that?

HALLINAN: Well, you know, this was a charge that was brought to us by the grand jury. That is to say the grand jury in this case heard 39 witnesses, including the highly unusual opportunity to hear both of the defendants give their side of the story.

They took weeks of testimony. There was lots of forensic evidence. There were letters. There were documents.

We spent a lot of time preparing this to take it to the grand jury. We went to them to ask their advice on the charging. And they told us they wanted to prosecute this as a second-degree murder. And we've agreed to do that.

And I believe we can do that successfully. And believe me, this grand jury was no ham sandwich. This was a smart, intelligent San Francisco jury with a lawyer as a foreperson. And they knew what they were doing.

COSSACK: All right, I think at this time, you've got to explain to our viewers what second-degree murder is, because I think the problem that lawyers are talking about is how are you ever going to prove that premeditation and intent?

HALLINAN: No. Premeditation and intent are not part of second- degree murder. If we have premeditation and intent, we'd have first- degree murder, or at the very least -- or in the alternative, voluntary manslaughter.

We have a case based on negligence. The difference between involuntary manslaughter and second-degree murder is the degree of negligence, really, in the foreseeability of what happened. That the negligence is so extreme that raises it to a level of malice.

And we believe that that's provable in this case.

COSSACK: All right, joining me out from San Francisco is San Francisco criminal defense attorney Bill Osterhoudt.

Bill, in terms of defending this case, you've heard what Terence said, that this is a second-degree murder case, which he believes that he can get a conviction of.

While this is a terrible event, the question is the correct charging, of course. As a defense lawyer, are you skeptical about this second-degree murder charge?

WILLIAM OSTERHOUDT, CRIMINAL DEFENSE ATTORNEY: Well, I think you have to be skeptical about it, Roger, because it's so unusual. And even the prosecution wasn't talking about that as they were representing the case to the grand jury.

Terence is right. Implied malice can be shown by an extreme kind of recklessness. But what you have to show is disregard of a known risk of death that is -- can be appreciated, and actually is appreciated by the defendant.

A person who drives drunk into a crowd of people, who drives recklessly, who fires into a crowd, doesn't mean to kill, and doesn't have an intent. But still is -- has implied malice.

But this is, I think, a stretch to say that there was that kind of extreme recklessness and the appreciation of a known risk of death. I think that's going to be a challenge for the prosecution. And I think they know that.

COSSACK: Terence, the issue here, I think, is you are going to have some difficulty with, and, you know, I'm sure you've thought it out already, is the notion of knowledge. What did these people, what did they -- what did this woman actually know about these dogs? Do you have -- are you prepared to prove their knowledge?

HALLINAN: Well, I'm not at this point free to go into the testimony that was heard before the grand jury. As I say, there were 37 witnesses, plus the two defendants.

There have been many statements in the paper and publicly acknowledged by people who said they had had experiences with these dogs, that they had bitten by one or the other, these dogs. That these dogs had attacked their animals. That they had bit the owner himself and bit his finger off.

That -- under those circumstances -- and I -- I mean, Bill Osterhoudt is the defense attorney whom I have great respect for. And of course, he doesn't know all the details that the grand jury had advantage of seeing here.

But I think the analogy with firing a gun into a crowd is not inaccurate here. That, in our feeling, walking around with these two dogs on just a couple of leashes, and in some case, not on leashes at all, among crowds of people, in a crowded city like San Francisco, was analogous to firing a gun into a crowd.

COSSACK: Terence, what you are suggesting is that these dogs in a sense, if I might, you know, be a little poetic, if you will, were almost walking time bombs, that they were bombs that were prepared to go off, and that no one should be walking around with bombs that are prepared to go off. Can you prove that?

HALLINAN: I -- well, that's going to be the issue.

And I -- the walking time bomb is another accurate metaphor. These were walking time bombs.

I believe we can prove it. We can show people who had had -- who have been bit by these dogs, had these dogs -- bit by these dogs, have been leaped at by these dogs.

Well, as I say, we had a slew of witnesses in front of the grand jury. We will have to put on a slew of witnesses and convince the jury that these people certainly knew that these dogs were dangerous, that they were likely to attack and kill somebody or seriously injure somebody, and that with -- even with that knowledge, they did little, if anything, to safeguard the public from them.

COSSACK: Terence, what about the relationship that these people allegedly had with these prisoners inside Pelican Bay? That we know at least from the paper that they had adopted one of these prisoners. And allegedly, these prisoners were running these guard dogs, this vicious guard dog business out of the prison.

Do you have any information to confirm that?

HALLINAN: Well, that -- yes, we do. And we've obtained there was an investigation, the California Department of Corrections, that confirmed that these convicts were raising this vicious breed of -- I mean, I don't know if there's such a thing as a vicious breed. But certainly, if not, properly raised what would turn out to be vicious, extremely dangerous dogs Presa Canario from the Canary Islands.

And that they were utilizing outside people, Aryan Brotherhood members, lawyers, friends, to raise these dogs for them. They would give the dogs to the people. And then in exchange, they would receive the offspring and they could sell them. And that money would go back to their commissary or for their use in the prison.

I think that's pretty well established. Of course, it's well established that they did adopt this "Cornfed" Schneider. "Cornfed" refers to the guy's size, regarded generally as probably the most dangerous prisoner in the California Department of Corrections. Why they did that is really beyond me.

COSSACK: Let's -- thank you to Terence Halinan, the district attorney from San Francisco.

Let's take a break. I want to remind our viewers that the arraignment in this case, that was previously scheduled for today, has been continued to April 13th. Of course, CNN, when the arraignment is -- does occur, CNN will bring you all the information on it. Let's take a break.

More on this case when we come back. Stay with us.

(BEGIN Q&A)

Q: Why is a 29-year-old former tackle for the Cleveland Browns suing the NFL for $200 million?

A: Orlando Brown claims his football career was ended by eye injuries suffered from a penalty flag thrown by a referee.

(END Q&A)

(COMMERCIAL BREAK)

COSSACK: This mauling case has exposed some bizarre legal twist of an alleged dog breeding business run from prison and the adoption of a 38-year-old convict. Will these twists play a role in the trial?

Bernie, lets ask you. You've defended some bizarre and strange cases -- I say bizarre without trying to lose sight of how terrible this case is. In light of the facts here, what do you do about defending these people? And you have a conflict, too. You have the woman who was present when the dog attacked and the man who wasn't; I mean, what do you do?

BERNARD GRIMM, CRIMINAL DEFENSE ATTORNEY: There's a problem there. In terms of the conflict, each person needs their own lawyer clearly, but in terms of representing clients, lawyers are the most difficult people to represent because they know everything. You can't tell them a single thing. They went into the grand jury, which is clear they are not criminal lawyers.

This defense will be won or lost on purely legal grounds; it's not a case where you can nullify it to a jury. Your objective would be to beat the second degree count.

COSSACK: Bill, this is an emotional case; I mean, I can imagine how people feel in San Francisco about this case. So, your walking in probably the two of the most unpopular defendants that probably has been seen in a long time; how do you try and counter that as a defense lawyer?

OSTERHOUDT: Well, I think the first thing you do is try to make sure the clients keep quiet. This is something they haven't been able to do, and it's been a great problem for them because their case has been as unpopular as it can be.

Secondly, I think you want to give consideration to changing venue, if you can. And moving the case out of San Francisco. There's been a tremendous amount of negative publicity about them here, some of that is their responsibility, but also, the media has definitely had them in their sights. And I think it will be difficult for them to get a fair trial here. So, I think you will see a motion for change of venue.

COSSACK: All right, Bill, let me be devil's advocate for a second and say, you know what? There's a lot of bad publicity about these two in San Francisco, but you know, they wrote letters to the newspaper; they created that bad publicity. So, how can we actually ask them to move the trial, how can they ask us to move the trial when they are the ones that fanned the flames?

OSTERHOUDT: They may have done that to some extent, but there probably would have been bad publicity anyway. I think there was publicity independent of anything that they did. Their adoption of Schneider came to light very quickly, the terrible circumstances of the death of Miss Whipple created prejudice against them; the publicity surrounding pit bull attacks.

I think this was something that was really going the make their trial difficult, even if they had not said a word.

COSSACK: Bernie, the notion that they testified before the grand jury; we all know what that means, it means that anything they say can be used against them, they were told that before they testified, and guess what? Those words will be coming back to haunt them. What about that? Is there any way they will be able to keep those statements out? Why would they want to do that?

GRIMM: I think being lawyers, they probably thought between themselves, listen, we can gut this whole prosecution right now, we can get in there and give our version of the events which was that the victim here, perhaps, may have assaulted the woman owner of the dog, and that provoked the dog to attack the individual.

But it's just a monumental mistake -- they were obviously representing themselves at the time, and the saying goes, anybody who represents themself has an idiot for a client; and they do. They will not be able to get these statements out. There's no violation of right to counsel, the statements -- they were advised of their rights beforehand, and they made statements under oath, which as Bill knows, is the most damaging kind of statement.

COSSACK: Bill, what about these two? Are they known in San Francisco? Do they have a reputation: these two lawyers that suddenly popped up?

OSTERHOUDT: I don't think they are known. They have done -- they haven't done criminal law, as you can kind of tell from their unfamiliarity with that process. Bernie said, you just don't go to the grand jury and try to talk your way out of an indictment when the prosecution has brought it that far.

But they -- he has litigated a lot against the prison system -- the prison bureaucracy, Department of Corrections, kind of a specialized practice. I don't think they've been seen a lot around town and they haven't been widely known.

COSSACK: When do you think this case will go to trial? You think it's going to be awhile or what?

OSTERHOUDT: I think it will be a while, Roger, because I think there will be efforts to move it out of San Francisco and also, this indictment -- that DA says it is impenetrable and how intelligent and wonderful the grand jury was, but it will be subject to a lot of attack.

And I think that if the prosecution evidence before the grand jury cannot sustain the second-degree murder case, then it will be good for the defense.

COSSACK: All right. Bill, that's all the time we have today. Thanks to our guests, and thank you for watching.

Join us again tomorrow for another edition of BURDEN OF PROOF. We're going to see you then.

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