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Richard H. Polsky, Ph.D.

Website author

Expert Witness for the defense

Animal Behavior Counseling Services, Inc.

Los Angeles, CA.

Conclusions

Why did the jury focus on the intermittent negative past encounters Bane and Hera had with people rather than on the many positive encounters which regularly occurred? Surely, these dogs also had a “good” side to them as reflective in their amicable discourse with Noel and Knoller, and with other people they met away from their territory. In fact, there was only a small percentage of occasions – relative to the total opportunity – in which they actually displayed their aggression. In contrast, there were thousands of occasions in which they behaved in a perfectly normal manner towards unfamiliar people they encountered in the apartment building (particularly the lobby area).

Prior to the mauling of Whipple, these dogs had never attacked any stranger in severe fashion, despite having several opportunities to do so. These dogs were never trained to intentionally attack. They were not used for guard dog or watch dog purposes. Bane and Hera were kept by the defendants simply as pets. The prosecution introduced no conclusive evidence to the contrary with regard to this latter point.

However, the case for the defense suffered because they could not find favorable witnesses from the apartment building to testify on their behalf. Everyone living there, and even those in the immediate neighborhood, took a dislike towards the defendants. People in the neighborhood who knew Bane referred to him as the Dog of Death, the Beast, or Killer dog.

Bane and Hera engaged in displays of aggression which would have been enough to frighten any person. Although they were a relatively low percentage behavior, they nevertheless occurred with sufficient frequency (approximately 30 times in a five month period) to put Noel and Knoller on notice. In the words of prosecution expert Lockwood, “even if it happens just once in ten times then a greater standard of care is required.” Based on this evidence, it was correct to conclude that these dogs were dangerous by nature and that Noel and Knoller knew about these dangerous tendencies prior to the mauling of Whipple but took no meaningful action to correct the situation.

One should not loose sight of the fact that Bane’s and Hera’s displays of aggression were typical occurrences of normal territorial behavior – a trait found in many dogs and a trait valued by many dog owners. The difference here was that these displays were made by large, intimidating dogs who had the potential to inflict serious injury (but not necessarily kill). Moreover, Bane and Hera’s displays of aggression became increasingly more frequent. The displays were made by dogs who could not be fully controlled by their owners, and yet the owners continued to take them out in public. Further, what made matters worse, was the fact that the owners were disrespectful to those who were the targets of the dogs’ aggressive displays. It appeared to many that Noel and Knoller simply did not care.

Thus Noel and Knoller were portrayed by the prosecution as horrible, despicable people. They were portrayed as insensitive and totally disrespectful of the needs and safety of others. Association with a prison gang members, cold and callous attitudes towards neighbors who were undoubtedly frightened of the dogs, and blaming Whipple for her own death, did not play well with the jury. It created a feeling of strong dislike towards the defendants. Moreover, the people of San Francisco, particularly those in the gay community, were eager to see harsh punishment for the defendants. Undoubtedly, Hammer knew this, and as lead prosecutor he may have been motivated by his own political and social agendas. Ruiz alluded to this during trial but she caught alot of flak for doing so.

What the defendants said to the media certainly damaged their own cause, their attitude was horrible, and who they chose to associate with was foolish. Noel and Knoller were their own worst enemy. However, very little of this had anything to do with the main issues of the case: Were the dogs dangerous by nature and did the defendants know about this? Did Knoller know Bane could kill? Did Whipple play any role in making Bane go berserk? Once the attack started, was it possible for Knoller to stop it? Was Bane like a loaded gun? Was the mishandling of Bane by Knoller on the day of the incident foreseeable?

Issues such as these are tied in part to an understanding of the aggressive behavioral tendencies of dogs. Greater use of behaviorally-based arguments by the defense may have allowed jurors to act with more reason before finally reaching a guilty verdict for Knoller on second degree murder and guilty for Noel with regard to the charge of manslaughter.