[Scott Graham]
Nine years since her dogs mauled Diane Whipple to death, the murder case against Marjorie Knoller continues to churn through the appellate courts -- and another protracted fight appears to be just around the corner.
The First District Court of Appeal has asked for supplemental briefing on an issue that was hotly disputed when Knoller’s motion for new trial was reheard in 2008: whether it was proper for the San Francisco Superior Court to assign a new judge to the case. Judge James Warren, who presided over the 2002 trial but had since retired and moved to JAMS, indicated he might be available for a special assignment. But the presiding judge at the time, David Ballati, assigned the case to Judge Charlotte Woolard instead. Woolard denied Knoller’s motion and sentenced her to 15 years to life in prison.
In a January order, the First District raised seven different questions about Ballati’s move. “Were the reasons for substituting a judge proper in the present circumstances?” the court asked. “What policy considerations apply?” The court gave the parties an expansive 30 pages to address the issues.
In response, Knoller’s lawyers are raising a novel argument: that Ballati created the appearance of bias by assigning a sitting superior court judge subject to election to decide a politically charged case. “Whatever his intention, Judge Ballati’s decision, rather than increasing confidence in the independence of the judiciary, created the appearance that the substitution was made to assure a final result more to the liking of the San Francisco public,” states Knoller’s brief, signed by defense lawyers Dennis Riordan and Donald Horgan.
Knoller was convicted of second-degree murder in 2002 following a six-week trial that was moved to Los Angeles due to pretrial publicity. Her husband, Robert Noel, was found guilty of involuntary manslaughter. Judge Warren struck down the murder conviction shortly after the trial, saying that he believed Knoller when she testified that she had no idea her dogs could kill someone. He also stated he considered Noel more culpable.
Warren’s ruling was controversial and briefly led to calls for his ouster from the bench. The First District reinstated the murder conviction on a 2-1 vote in 2005, ruling that Warren had set too high a standard to find implied malice. But the California Supreme Court ruled that both courts had gotten the standard wrong -- that it was higher than Warren had set it but lower than the First District’s formulation. The Supreme Court remanded the case “to the trial court for reconsideration” in light of its opinion.
By then Warren had retired. Superior Court Judge Kay Tsenin said she thought the Administrative Office of the Courts would be willing to reassign Warren on a pro tem basis. But Ballati squelched that, saying it could cause problems with courtroom assignments and that bringing in “a judge who has retired and has gone into private business” could create appearance problems. He assigned Judge Woolard, who reviewed trial transcripts before rendering her decision.
Knoller’s lawyers objected vehemently, arguing that Knoller's credibility was a crucial issue, and that if reading a transcript were all that was required, the Supreme Court could have done that itself.
The attorney general’s office, meanwhile, argues that Ballati’s decision is non-reviewable, and calls the defense’s claims of bias “unfounded and meritless.” Deputy Attorney General Amy Haddix further asked the appellate court to take judicial notice of Chief Justice Ronald George’s guidelines for pro tem judges, which prohibit private judges from serving as public pro tems except in “very unusual circumstances.” The court granted the AG’s motion May 26.
When the First District hears arguments, it likely will have its own “substitute judge.” Justices James Lambden and Ignazio Ruvolo formed the 2-1 majority in favor of the prosecution in 2005, with Justice Paul Haerle dissenting, saying Knoller had received ineffective assistance of counsel. Since then Ruvolo has left Division Two to become presiding justice of Division Four. His successor on Division Two, James Richman, or Division Two PJ J. Anthony Kline, will most likely take Ruvolo’s place.
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