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Prosecutor: Murder charge in dog maul case will be 'very difficult'

District attorney critical of judge's ruling

San Francisco District Attorney Terence Hallinan

SAN FRANCISCO, California (CNN) -- One day after a judge overturned a jury's verdict in a closely watched dog mauling trial, the city's district attorney said Tuesday it will be "very difficult" to pursue a murder charge against the woman who was walking the large dog that attacked and killed a neighbor in an apartment hallway.

Superior Court Judge James Warren let stand convictions against Marjorie Knoller, 46, and her husband, Robert Noel, 60, on charges of involuntary manslaughter and keeping a mischievous animal that kills.

Noel was sentenced to four years in prison, but could be free in about two years because of time served and time off for good conduct. Knoller's sentencing was delayed so prosecutors could appeal the judge's decision to toss out her conviction in March on a second-degree murder charge.

Warren said he overturned Knoller's murder conviction because there was no evidence that she knew her dog would attack and kill someone.

CNN NewsPass VIDEO CNN's Anne McDermott reports a judge threw out the second degree murder conviction against Marjorie Knoller for the dog mauling death of Diane Whipple (June 17) Play video   Judge's ruling California state law requires that to support a second-degree murder conviction a pet's owner must know the animal had a high probability of killing someone. In throwing out the second-degree murder conviction against Marjorie Knoller, Judge James Warren said there was not enough evidence she had such knowledge. Warren also said that Robert Noel, Knoller's husband and co-defendant, did not face a similar charge and he was more culpable than the wife, in the judge's view. RESOURCES Indictment: People v. Knoller and Noel  (FindLaw document, PDF format)   LEGAL RESOURCES Latest Legal News Law Library FindLaw Consumer Center Select a topic Bankruptcy Discrimination Divorce Estate Planning Landlord-Tenant Personal Injury Taxes   EXTRA INFORMATION Court TV: Complete coverage

"We're gathering our forces and deciding what to do," said Terence Hallinan, the San Francisco district attorney. "It's very tricky. He [Warren] reversed it on the facts. He decided that the jury, in effect, was wrong when they decided she had knowledge when she opened the doors and let the dogs out. That makes it hard for an appeal."

Michael Cardoze, an attorney for Sharon Smith -- the domestic partner of victim Diane Whipple, 33 -- said the judge "took justice away" from the state of California.

He said the decision "doesn't make much sense" because the judge had not previously raised any objections.

Prosecutors said Monday they would file a motion urging the judge to reconsider his reversal.

Hallinan criticized the judge, saying he had given no indication before the trial and throughout the trial that there might be a problem with the murder charge.

"He had decided on the issues three times during the course of the trial and sided with us in every instance," Hallinan said. "We're wondering what happened between the verdict and the motion for a new trial."

In his ruling, Warren lambasted Knoller and Noel, both lawyers, calling their actions "despicable" and criticizing them for what he said was a lack of remorse.

He also told Knoller that he didn't believe most of her testimony from the trial -- in which she said she tried desperately to stop the Jan. 26, 2001, attack on Whipple -- but that he did believe her statement that she had no idea her dog, Bane, would attack and kill someone that day when she took it out into the hallway.

Bane was one of two Presa Canarios owned by the couple. The other dog, Hera, was loose in the hall during the attack. Both dogs were later destroyed.

Hallinan said his office would consider the risk of "double jeopardy" in deciding whether to bring a new murder charge against Knoller. That phrase refers to a constitutional provision prohibiting individuals from being tried for the same crime twice.

"We have to take into consideration the feelings of her family and her domestic partner, who has said, 'Hey, I've had enough,'" Hallinan said.