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Richard H. Polsky, Ph.D.

Website author

Expert Witness for the defense

Animal Behavior Counseling Services, Inc.

Los Angeles, CA.

Trial

The trial began in mid-February 2002. It consumed 18 court days covering a period of nearly 5 weeks. In his opening statement, Hammer made much ado about the defendant’s connections to Schneider and the Aryan Brotherhood, the defendants cold and callous nature, and the inconsistent or unbelievable testimony Noel and Knoller gave at the Grand Jury hearings. Numerous pieces of correspondence from Noel to Schneider were read to the jury. For example, in one chilling letter written by Noel shortly after the mauling, he states (with reference to Hera who was still alive): “There is no way to ease into this. Bane is dead as is our neighbor ….. Neighbors be dammed. If they don’t like living in the building with her, they can move.” Hammer also read a portion of Knoller’s Grand Jury testimony in which she stated that Hera was no more dangerous than a chihuahua!

The prosecution also used a large projection screen to display the gory pictures of Whipple’s mauled body. Hammer presented a life-size cast of Bane’s mouth and teeth. He repeatedly showed this to the jury, snapping the jaws shut, creating the impression that Bane’s teeth were indeed lethal weapons.

As a means to discredit Knoller, Hammer replayed the tape of what Knoller said on the Good Morning America show. In the interview Knoller protrays indifference and blames Whipple for her own death. According to Knoller, “It’s not my fault. I wouldn’t say that I was unable to control them. Ms. Whipple had ample opportunity to move into her own apartment. She could have just slammed the door shut. I would have.” These comments may have sealed Knoller’s fate.

Witness Testimony

Nearly 60 witnesses testified. There were the so-called “Bad Dog” witnesses for the prosecution. These witnesses, collectively, testified that there were about 30 occasions in which they or others had aggressive encounters with the dogs. Some also testified about incidents which showed the defendant’s lack of control over Bane and Hera. For example, several witnesses said they saw either Noel or Knoller being dragged by the dogs. A veterinarian, Donald Martin who examined the dogs while they were at Coumbs’ farm, testified that months prior to the mauling he had sent the defendants a letter warning them that Bane and Hera “would be liabilities in any household.” Several others testified about the warnings they gave the defendants; for example, the need to have the dogs muzzled. A prison gang expert testified that the defendants were “associates” of the Ayran Brotherhood and that they helped run a dog-breeding business for the Ayran Brotherhood.

To counter this, the defense called “Good This inner pages called Dog” These were people who experienced favorable, non-aggressive encounters with the dogs. Jurors were also shown photos of the Noel and Knoller posing with their dogs outside upscale restaurants and stores in San Francisco. An important part Ruiz’s defense for Knoller was that Knoller acted heroically in her attempts to save Whipple. To support this argument, Ruiz introduced photos of Knoller’s bruised face and blood-stained clothing. The defense also called a medical expert who testified that the bites on Knoller’s body were similar to the bites found on Whipple.

The highlight of the trial was undoubtedly the testimony of Knoller. She gave three days of highly emotional testimony, punctuated by bouts of sobbing and shouting. She said she could not understand why Bane turned from a loving, docile, friendly pet into a vicious killer. “How could he turn into what he turned into in that hallway” she shouted during her testimony. She said that no one had ever warned her that her dogs could be vicious. She asserted “never in a million years did she think Bane was capable of doing something like that.” To discredit the testimony of the bad-dog witnesses, Knoller said they were all mistaken, inaccurate or that the instances never happened.

Noel never took the stand. Further, during trial, Noel’s attorney, Hotchkiss, chose not to cross-examine some prosecution witnesses. This may have been a tactical decision, perhaps because Hotchkiss felt the testimony of certain witnesses had more to do with Knoller’s culpability rather than Noel’s.

Fireworks in the courtroom

From the onset, Ruiz unconventional style of lawyering was the focus of much attention. During opening statements, she dramatically crawled on the floor to demonstrate how Knoller tried to protect Whipple from Bane’s onslaught.

Ruiz also made a number of controversial statements during trial. First, she suggested that Whipple’s partner, Sharon Smith, was partially at fault for Whipple’s death because she never complained about a previous encounter in which Bane supposedly bit Whipple on the hand. She asked Smith during cross-examination: “Do you consider that if you had made a complaint that Diane Whipple might be alive today?” The prosecution objected and Smith did not answer. Outside the courtroom, Smith said she was shocked and deeply offended by the question. Others also were critical of Ruiz for her tactics.

Nevertheless, Ruiz continued to attack Smith. Despite the gag order imposed by Warren limiting what the attorneys could say outside court, Ruiz appeared on the Fox News Program On the Record with Greta Van Susteren. Ruiz questioned Smith’s creditability. Ruiz accused Smith of lying or exaggerating her claim that Whipple had previously been bitten by Bane or that Whipped feared the dogs. Warren got wind of the appearance of Ruiz via complaints he starting receiving the next day in court. Warren was not happy. Ruiz was told that sanctions against her might be made. Later, sanctions in the amount of $750 were imposed against her after the trial concluded.

Next, Ruiz suggested that Hammer, who is gay, was trying to “curry favor” with San Francisco’s gay and lesbian population by prosecuting the case. This statement outraged many. Next, Ruiz argued that the prosecution should not be allowed to use evidence from the Grand Jury hearing because District Attorney Terrence Hallinan intentionally created negative publicity against the defendants, and because in Ruiz’s words, “even a ham sandwich can be indicted.”

In austere fashion Warren ruled against Ruiz by citing a report which concluded that it was the defendants who brought hostility upon themselves via their public statements suggesting their untruthfullness, their lack of sorrow and responsibility, and blaming the victim for her own death. Finally, during Hammer’s closing argument, Ruiz stood up and objected – a tactic which is simply not allowed by opposing counsel during closing arguments. This first time she did this it brought sharp rebuke from Warren. However, when she did this again a short time later, Warren threatened to immediately put her in jail!

Ruiz’s style of lawyering contrasted markedly with the low-key, emotionally-contained style adopted by Noel’s attorney, Bruce Hotchkiss. Throughout the trial, Hotchkiss maintained a low-profile and was out of the spotlight.

Expert testimony from animal behaviorists

Behavioral arguments were never utilized at trial to their full extent. Hammer chose not develop behavioral arguments through expert testimony despite having retained two doctoral-level animal behavior experts for this purpose. Partially for this reason, the defense had less of a need to call Polsky to testify. More importantly, the defense was hesitant to use Polsky as a testifying expert because they knew that Polsky felt the dogs were dangerous and that Polsky would have warned the defendants of the danger Bane and Hera presented.

Towards the end of the trial, Polsky came close to testifying as a rebuttal witness to the prosecution’s behavioral expert, Randall Lockwood, Ph.D. Dr. Lockwood was used to rebut aspects of the Knoller’s testimony and to undermine the testimony from the Good dog witnesses. Much of what Lockwood said, in the opinion of this author, was beneficial for the defense, particularly in regard to his testimony regarding bite inhibition.

For example, Lockwood testified that dogs have the ability to control the force of their bite – in other words, intentionally inhibit their bite at will. Inhibited bites were in fact the kind of aggressive displays Bane had previously engaged in. This in turn suggests that Bane was intentionally reserved in his previous aggression towards people, therefore suggesting that he may not have been as dangerous as the prosecution wanted the jury to believe. The defense knew that Bane’s previous bites to people were of the inhibited type but they did not challenge Lockwood on this point, nor did Ruiz in her cross examination challenge Lockwood on other points about dog behavior which may have been helpful to the defense.

Dr. Lockwood gave very strong testimony for the prosecution with regard to his downplaying the significance of Bane and Hera’s “good” behavior towards people (as presented by the Good dog witnesses). Lockwood said, “On one hand, if a dog licks 10 children in the face and then bites the finger off of the 11th, those ten prior acts are irrelevant in terms of telling me what standard of care needs to be exercised in supervising that dog.”

Immediately following Lockwood, Polsky was in the courtroom scheduled to testify despite objections from the prosecution. Unexpectedly, the defense changed their minds at the last moment about having Polsky take the stand. The risk existed that more harm than good might come by having Polsky testify, or perhaps the defense’s thinking was that Lockwood’s testimony was not that damaging.

Earlier, in a pre-trial hearing, Polsky testified for the defense about the careless and nonscientific manner in which behavioral testing was conducted on Hera (Bane could not be evaluated because he was destroyed by lethal injection shortly after the mauling) and also in regard to whether the defendant’s alleged acts of sex with the dogs contributed to the attack.

The verdicts

The decision by Ruiz to let Knoller testify may have been a serious mistake. Her testimony was not convincing. It was not believable. Jurors carefully studied her courtroom testimony and compared it with her appearance on the Good Morning America show. The differences were rather glaring. Jurors believed that Knoller’s testimony was both fabricated and inconsistent. The jury felt that Knoller knew that Bane and Hera were capable of killing. One juror commented that the defendants showed “no kind of sympathy, no kind of apologies.”

Consequently, the jury returned guilty verdicts for both defendants on all five counts. The consensus among legal experts was that Knoller’s creditability was the key factor that undermined not only her defense but also possibly that of Noel.

The conviction of second degree murder for Knoller was unprecedented in California. Legal expert did not expect conviction on this charge. It was the only the third time in this country that anyone has been convicted of murder due to the actions of their dog.