The grisly killing of Diane Whipple in the upscale Pacific Heights section of San Francisco by two Canary Island Fighting dogs left many people in the Bay area shocked and very few unaware of this gruesome incident. In a recent completed poll by political scientists at Calfornia State University, 97 percent of potential jurors surveyed in San Francisco have heard of the case and 71 percent feel that the defendants are probably guilty. Because of the enormous publicity the case has generated, both on the local and national level, the presiding judge recently ordered that the criminal phase of the trial be moved from San Francisco to Los Angeles. It is scheduled to begin on January 22nd, 2002.

The Whipple case is fundamentally a case about dog behavior. Therefore, the evidence and arguments presented at trial must be presented using a behavioral perspective. A behavioral perspective, which utilizes knowledge and principals from the science of animal behavior known as ethology, is needed in order to clearly evaluate and assess the validity of the charges against the defendants. For example, obvious issues in the Whipple case concern breed tendencies, "dangerous" propensities in a dog, provocation, proper handling of a dog, and one's knowledge concerning forseeability or predictability of dog behavior. These are all issues about animal behavior and hence all have bearing on the criminal charges filed in this case. Below, I will present my views on the case from this perspective.

Background

Diane Whipple was tragically mauled to death by two adult Canary Island Fighting dogs in the hallway of her apartment building on January 26th, 2000. The facts surrounding the incident as we know them at this time were approximately as follows: Whipple was about to enter her apartment when she noticed the defendant, 46 y.o. Marjorie Knoller, with her dogs some distance away in the hallway near the elevators. Shortly thereafter, an encounter commenced between Whipple, Knoller, and the dogs. It will probably be difficult to say for sure exactly what transpired at the start of the encounter - both verbally and nonverbally - since Knoller is the only remaining eyewitness. All that can be said with certainity is that at some point in time, the defendant, who states that she had the dogs on leash, lost control of them and they charged at Whipple and started to attack her.

It is believed that the reproducatively intact 133 pound, 2 y.o. male, named Bane, attacked Whipple first by ripping at her clothes. Shortly thereafter, as the attack intensified, Bane started biting at her neck, and the other dog, a 110 pound, 2. y.o. reproductively intact female named Herra, joined in.

A person, present in the apartment at the time of the incident, heard screaming that lasted approximately five minutes. He says it sounded like someone was being raped. The attack on Whipple left her body mangled. Nearly all of her clothes were torn from her body. She was bitten hundreds of times from head to toe and her blood was found on the walls as high as six feet above ground. Whipple died about five hours later in hospital. Those who rescued her described the scene as horriffic and some required psychological counseling to help them cope with the graphic nature of their findings.

When police arrive at the scene, after being summoned via a 911 call from a resident in the building, they discovered Whipple barely alive, crawling naked in the hallway. The two dogs, who were nearby, started to trot back to the apartment where the defendant lived. They were captured without incident and taken into cusody. The defendant was not in the immediate area. Knoller states that she left the scene to search for her missing keys. Further, it does not appear that she made an effort to contact anyone for help.

Whipple was an attractive and popular 33 year-old lacrosse coach at Saint Mary's College in Moraga. She had been an all-American lacrosse player at Penn State University before moving to California in the early nineties. She was a lesbian who shared her apartment with a partner of approximately 7 years named Sharon Smith. This latter factor, although not too relevant to the issues discussed in this article, is significant because both Smith and Whipple's mother are seeking compensation in a civil action against the defendants, and the owner of the apartment where the dogs liived, for wrongful death. This aspect of the case has generated considerable interest amongst lawmakers and those in San Francisco's gay community, because Smith's lesbian status may not be sufficient to allow her financial recovery under California law that was in effect at the time of the incident.

The two dogs that mauled Whipple to death belong to a rare breed that was only recently introduced into this country in 1990. Their formal name is Perro de Presa Canario, commonly known in the dog world as the Canary Island Fighting Dog. This breed is profiled in this issue of the newsletter (see page 5). Dogs of this breed are relatively large and very muscular. They were originally developed from the mastiff line for working and guarding purposes (e.g. cattle hearding and protection) in the the mid-1800's in the Spanish Carary Islands. At some point, someone there got the innane idea that they would make good fighting dogs; hence individuals from the certain lines of this breed were eventually developed for this purpose. Temperamentally, the breed has been described as pugnacious in nature. One breeder has characterize Canary dogs as "pit bulls on steroids".

The two defendants in this case are a married couple, attorneys by profession. Fourty-six year old Marjorie Knoller, was the defendant in possession of the dogs at the time of the incident. The co-defendant is 59 y.o. Robert Noel. Both are being held on bail of 1 million dollars each. Noel and Knoller have each been charged with two felony counts: involuntary manslaughter and the negligent keeping of a mischevious dog that killed someone (CA. Penal Code 339). In addition, Knoller is charged with second-degree murder. Each have entered pleas of not guilty on all counts.

Neither Noel or Knoller claim ownership of the dogs. Instead, Noel claims that he was the "trustee" or keeper of the dogs and that ownership belonged to Paul "Cornfed" Schneider, a 46 year-old white-supremacist serving a life sentence for murder in California's Pelican Bay State Prison. Together, he and his cell-mate, Dale Bretches, another convicted murderer and white-supremacist, established in prison an internet based business called Dog-O'-War. The business sought to breed and sell Canary Island Fighting dogs for the purpose of providing financial support for their prison gang, Ayran Brotherhood.

In order to sell the dogs they needed a location where the dogs could be physically kept and maintained. To do this they enlisted the outside help of Janet Coumbs who lived on a farm in Trinity County, CA. Two of the Carary dogs that lived on this farm were Bane and Hera. Hera was given to Noel and Knoller by Coumbs in May, 2000 and Bane was obtained by the defendants several months later. It is unclear of how Noel and Knoller learned about the dogs on Coumbs' farms, but presumably word came from Schneider. It it believed by some that she gave them away because she felt they were too aggressive and unmanageable. Supposedly these dogs tore doen the side of a barms and they may have also kllled a cat and sheep on her farmm. Defendant's deny that Coumbs ever told them anything negative about the dogs. Some of Bane's pups wound up in the hands of a person in southern California name Calvin Murphy Last summer, she ran a classified ad in the LA Times offering the pups for sale for $1200 apiece. Murphy characterized the pups as being "bad to the bone".

The case becomes even more bizzar because of the connection between Schneider and the defendants. Schneider happens to be the leagally adopted son of Noel and Knoller. Nedvertheless, this relationship is peculiar to say the least. For example, a search of of Schneider's prison cell revealed nude photos of Knoller as well as a letter from Knoller describing acts of bestiality between Knoller, Noel and the male dog Bane. Further, recently is has even been aledged by procuters that Knoller and Noel provides support for the activities of the Ayran Brotherhood which Schneifder supposedly heads.

Legal and Behavioral Issues

Second degree murder via implied malice

The Second degree murder against the Knoller may be the most difficult charge to successfully prosecute. There's no precedent in California for the upholding second degree murder involving a dog. In fact, there has been only one case in this country where a person has been convicted of second degree murder because of the actions of their dog. This happen in Kansas in 1997 where a 10 boy on his way to school was killed by two previously attacked trained Rottweilers. In this case the dogs were trained for attack purposes, they had attacked people on previous occasions and the defendant knew about this. In California, second degree myurder charges were brought against the defendant in the case of Cash Carson However, in this case, the defendant was vindicated due to the fact that the dogs in question, attack-trained pitbulls, had no histry of prior attacks on people. There is also no eveidene that the dogs hadever been trained for attack ot that they attacked anyone before the incident with Whipple.

Where then does this leave the procution with regard to this charge? Knoller can be convicted of second-degree murder if the jury believes she acted with implied malice at the time of the attack. This assumes that Knoller knew of the dangerous nature of Bane and Hera, and she acted with wanton disregard for the life of others by willingly exposing these dogs to people. Next, Knoller could be convicted of second-degree murder via an implied malice theory if the jury believes that she acted with wanton disregard after the attack on Whipple started. That is, once the attack started, she did nothing to stop it.

Support for Implied malice via the temperament of the dogs

Knoller and Noel have repeatedly stated that both Bane and Hera were well tempered, generally nonaggressive around people and that they had never bitten or attacked anyone prior to the incident with Whipple. Knoller characterized Hera as a "certified lick therapist". The burden will be on the prosecution to refute these claims by bringing forth evidence to suggest that the dogs had previously acted aggressively towards people, or perhaps other animals. There is strong indication that evidence of this nature will be forthcoming. However, will it be sufficiently convincing to suggest that the dogs were dangerous by nature and that Noel and Knoller knew about this danger? Direct and indirect behavioral evidence could be used to answer this question.

Direct behavioral evidence

There can be no dispute that the attack on Whipple was savage, particularly by Bane. The savage nature of his attack suggests that he probably had aggressive tendencies in his behavioral repertoire prior to his attack on Whipple. From a behavioral perspective, it probably would have been difficult for him to display such a sustained and intense attack on Whipple had he been totally naive in the performance of aggressive-like behavior prior to the attack. In other words, his display of aggression towards Whipple was something that probably did not come out of the blue.

However, if there were previous displays of aggression, then did they happen frequently enough or with enough intensity to indicate that he was dangerous by nature and that he would attack a person with sufficient intensity and persistence to kill them? Moreover, if there were past displays, did these displays happen in a context similar to the context surrounding the attack on Whipple? Since aggression in dogs frequently only happens in certain contexts, it could be reasonably argued from a behavioral perspective that if he had previously acted aggressively only in different or dissimilar contexts, then the aggression he displayed towards Whipple in the context of the apartment hallway was out of character and therefore not foreseeable.

Behavioral evidence that has bearing on an implied malice theory can also be gleaned from the behavioral examination that was conducted on Hera. Unfortunately, Bane was not behaviorally examined because he was destroyed shortly after the incident. Based partially on the findings from Hera's behavioral examination, she was declared dangerous and vicious and ordered destroyed at her "doggy" hearing. From a behavioral perspective, the validity of this decision needs to be questioned because the behavioral exam was not conducted in the appropriate context. The exam on Hera was probably conducted in the 10 x 5 foot holding cage she was being kept in at the city's animal facility, or at best in some other stressful condition within the same facility. Meaningful behavioral testing should have been done outside the shelter environment, preferably in a context which closely resembles the context where the attack on Whipple happened. In addition, one must also scrutinize the procedures and methods used in the behavioral testing. Were they scientifically valid? Were the criteria used to conclude that Hera was dangerous and vicious consistent with the criteria used in published animal behavior literature?

Indirect behavioral evidence

Indirect behavioral evidence which may be used to support implied malice might consist of the following: (a) Breed characteristics of the Canary Island Fighting Dog; (b) Previous displays of aggression which Noel and Knoller were total about or which they actually witnessed; (c) Complaints made to them or to others about the unruly nature of their dogs; (d) Opinions of others (e.g. veterinarians or neighbors) who had some degree of familiarity with the dogs.

Obviously one main thrust of the prosecution will be to focus on the point of the inherently dangerous nature of the Canary dog. Prosecution will undoubtedly argue that dogs belonging to this breed are aggressive by nature. The validity of this argument needs to be seriously questioned from a behavioral perspective, however. For example, conclusions about the aggressive nature of any dog cannot not be made based solely on assumed inherent generalized breed tendencies. The science of animal behavior clearly tells us that the past experiences unique to any individual dog must also be taken into account in the formulation of temperament. In short, both breed tendencies as well as past experience, determine a dog's aggressive behavioral reactivity in any given context. This view happens to be consistent with case law in California which states that the breed of a dog in-and-of itself should not be sufficient put someone on notice of the dog's dangerous nature.

Thus one's knowledge about the aggressive nature of a dog therefore always has to be evaluated with reference to past behavior suggesting aggressive tendencies. The prosecution's burden will be to demonstrate that the defendants should have know about the dangerous nature of their dogs because other people complained about them or advised them about their dangerous nature or that the dog's displayed aggression to others in the past and the defendan's knew about this. In addition, prosecution may elect to present testimony from an animal behavior expert which addresses the significance of training and proper socialization, or lack thereof, and how this impacts aggressive propensities. In contrast, in order for the defense to prevail on an implied malice theory, the preponderance of the evidence must show that Bane and Hera were generally non-aggressive and well behaved, that they were properly maintained and cared for, that their non-aggressive demenour was consistent the the impressions others had formed about them, and that Knoeller acted appropriated after the attack started.

Implied Malice because Knoller's failed to act

Did Knoller take adequate action to stop the attack by the dogs once it started? This becomes a question as to whether she had the physical capability of doing this. From a behavioral perspective, It could be reasonably argued that because of the size and strength of the dogs and the motivational state the dogs were in working as a pair, no one could have physically done this. In this regard, there are many documented accounts involving other muscular and aggressive breeds where attack was only stopped with gunshot. On the other hand, an argument like this might be counter-productive for the defense. For example, as stated above, such a heightened state of aggressive arousal, as reflected in the nature of the attack, might suggest that the dogs had to have been truly dangerous and if this be the case, then Knoller should have known about it through their past aggressive displays.

The charge of involuntary manslaughter via negligence

Another question that will be tested at trial is whether the defendant's negligent actions were the proximate cause for the attack. On the day of the incident, was the leash and collar adequate to control dogs of this size and strength, given that they might encounter frightening or threatening circumstances? Were the defendants negligent because they did not obedience train or socialize the dogs properly? Were they negligent because they maintained these kind of dogs in an apartment approximately 800 square feet in size? These are behavioral questions that need addressing from a behavioral perspective.

Next, issues of negligence have to be viewed in a perspective that takes into account the chain of events that immediately preceded the start of the attack. Moments before the incident, Knoler states that she had the dogs on leash in the hallway some distance from Whipple who was about to enter her apartment. She claims that Whipple stood there and began staring at the dogs for over a minute. At this point, Knoller says she lost control of dogs - they broke from her, charged towards Whipple, and started to attack by first jumping on Whipple and pulling at her clothes.

If this account is believed, then questions need to be raised about the role Whipple played in instigating the attack. Specifically, could Whipple's staring behavior or some other form of hostile behavior, be regarded as provocative? From a behavioral perspective, there is no straightforward answer to this question. Other factors, besides the proximate behavior of the victim need to be taken into account. For example, the temperament of the dogs, their past behavior in the context in which the attack happened, and the prior interactions the dogs had with Whipple, all have to be collectively considered.

The charge of possessing a mischievious animal

In addition to manslaughter and second-degree murder charges, the other felony complaint against the defendants is possessing a mischievous dog that killed someone. If the defendants are found to be the legal owners of the dog, then the burden for the prosecution becomes one of proving that these dogs were "mischievous" by nature, that the defendants knew about this, and that they did not act with ordinary care given their knowledge about the mischievous nature of the dogs. The kind of behavioral evidence needed to support or refute these arguments is similar in kind to the evidence needed to either acquit or convict on the charges of involuntary manslaughter.

In sum, the Whipple case illustrates an interesting interplay between dog behavior and the law. As such, justice stands a greater chance of being served if the evidence is presented to the jury within a framework that utilizes a behavioral perspective.