Los Angeles -- The judge in the dog-mauling trial threatened a defense attorney with contempt yesterday for her suggestion outside court that the victim's domestic partner had lied on the stand.
"We are doing everything we can to make sure we get a fair trial here -- it does no good for counsel to go out and make comments like that," Judge James Warren told Nedra Ruiz, attorney for murder defendant Marjorie Knoller.
"You are not free to challenge the veracity of a witness," Warren said.
Warren told Ruiz to appear before him in May, after the trial is over, to show why she should not be found in contempt of the judge's order barring attorneys in the case from saying anything outside court that goes beyond describing the proceedings.
Despite Warren's scolding, which took place outside of the jury's presence, Ruiz showed little sign of backing down.
"I welcome the scrutiny of the judge," she told reporters. ''I'm very sorry only that the judge views my actions were in contempt of the court. I want justice for Marjorie.
"Her side should be heard," Ruiz added. "Especially since the prosecution has taken upon themselves to regularly appear in the media. . . . Marjorie has a right to have her side explained."
Ruiz touched off the furor Tuesday night when she said in a television interview that Sharon Smith, mauling victim Diane Whipple's domestic partner, had lied about or exaggerated Whipple's account of an earlier bite by one of the dogs belonging to defendants Knoller and her husband, Robert Noel.
Outside court Wednesday, Ruiz also questioned whether Whipple had really been living in fear of the two dogs, as Smith testified. She said jurors "will find it hard to believe that a regional vice president of Charles Schwab -- that's how Ms. Smith was identified, as a high-powered executive -- that she would allow the love of her life to live intimidated."
Smith's attorney, Michael Cardoza, sent a transcript of Ruiz's televised remarks to Warren, along with a complaint about the "slanderous" statements. Warren ordered Ruiz to come to court in San Francisco on May 17, where she will join District Attorney Terence Hallinan at a hearing about violations of the gag order.
Hallinan has already apologized for accusing Knoller of "making things up" in her testimony before the grand jury that indicted her.
The judge raised the issue before the jury was brought in to hear more defense witnesses, most of whom said the dogs seemed from all appearances to be good-natured.
One defense witness, however, gave a harrowing account of what he heard in the Pacific Heights apartment building the day Whipple was killed, Jan. 26, 2001.
David Kuenzi, a visitor from New York, said he had been on the third or fourth floor of the six-story building when he heard a young woman screaming, then dogs barking, followed by whimpering, silence and finally a plaintive voice saying, "Please stop! Please stop!"
He said he thought it all came from one woman who was being assaulted.
At first, Kuenzi said, "her voice was wild. I mean, she was screaming for her life."
After going up and down the stairs of the building and calling 911, he heard the pleas of a woman. "It was someone who's distressed, who's capitulated, who's giving up," Kuenzi said. He said he heard the woman saying, "Please stop. Don't do this."
"She was in control of her faculties and was able to talk in a normal voice, " he said.
He never found the source of the noise and said he hadn't realized at the time that dogs were attacking someone.
Under cross-examination, Kuenzi told prosecutor James Hammer that about 10 minutes had elapsed between the first screams and the cries to stop.
In arguing that Knoller is not guilty of second-degree murder, the defense has said she threw herself on top of Whipple to shield her from the attack. Yesterday, Ruiz suggested outside court that Kuenzi had the elapsed time wrong out of fear and confusion, and that overall his testimony supported Knoller's account of what happened.
The defense also called Stephen Tornay, who runs a kennel near Pelican Bay state prison and took in the dogs on two occasions just days before the attack.
Knoller and Noel had clients at Pelican Bay, including one they later adopted as their son.
One of the dogs, Bane, was a happy animal who loved to be petted, he said. The other, Hera, was no trouble, although more reserved, he said.
"The dogs were good dogs," Tornay said. "The people acted very responsible."
The defense also called Kim Boyd, widow of a slain Pelican Bay prisoner, who said she had seen the dogs repeatedly in her apartment in Lodi and that they had never posed any problems for her or her 7-year-old daughter.
E-mail Jaxon Van Derbeken at jvanderbeken@sfchronicle.com.
Los Angeles -- Diane Whipple's domestic partner lied on the stand when she said Whipple was terrified of the dogs that eventually mauled her to death, a defense attorney in the case said in extraordinary comments outside court.
The suggestion by attorney Nedra Ruiz that Sharon Smith perjured herself brought a sharp rebuke yesterday from Michael Cardoza, an attorney for Smith.
He said Ruiz had violated an order against commenting on witnesses' credibility outside court and complained to the judge in the case, James Warren.
"This is way over the line," Cardoza said. "This woman is unbelievable."
Ruiz, who is defending Marjorie Knoller against charges of second-degree murder and manslaughter in Whipple's death, first made the comments Tuesday night on the Fox News show "On the Record."
The show's host, Greta Van Susteren, wanted to know whether Ruiz regretted her harsh cross-examination of Smith, Whipple's partner of seven years.
That cross-examination came after Smith had testified that Whipple had told her a month before the fatal attack that she had been bitten on the hand by one of the two dogs kept by Knoller and her husband, co-defendant Robert Noel.
Ruiz asked Smith, "Do you consider that if you had made a complaint that Diane Whipple might be alive today?"
In justifying her question to Van Susteren, Ruiz suggested that Smith "did not fear" for Whipple and was "exaggerating or lying" about the incident involving the bite.
"First she said it was a welt," Ruiz said of Smith. "Then she said it was a puncture mark. Then she contends that her life partner lived in fear to even use her own elevator. Her life partner, Diane Whipple, was afraid to go out into the hallway. I don't believe it."
"Are you saying that Sharon lied about it?" Van Susteren asked.
"Yes, I am," Ruiz said.
"Everybody in the apartment wishes that things were different, wishes that Diane was alive," Ruiz said. "And now they come forward and claim that they lived in fear, when as a matter of fact, the dogs were acting normally.
"These folks did not live in fear," Ruiz said. "They lived in complacency."
During a break in yesterday's testimony, Ruiz stood by her remarks.
"I don't think the bite ever happened," she said. "I think the jury will find it hard to give credit to that account of that bite."
Ruiz also said the jury "will find it hard to believe that a regional vice president of Charles Schwab -- that's how Ms. Smith was identified, as a high- powered executive -- that she would allow the love of her life to live intimidated and afraid of using the elevator in her own building."
Ruiz questioned Smith sharply on the stand last week on other matters, suggesting that Smith was embellishing events to build a better case for a wrongful-death lawsuit she has filed against Knoller and Noel.
Cardoza, who is representing Smith in that suit, said he had obtained a copy of Ruiz's televised comments and was forwarding the transcript to Warren.
"My client is extremely offended by Ms. Ruiz's character attack," Cardoza wrote Warren, calling the defense attorney's comments slanderous.
In court yesterday, the defense called witnesses to suggest that the defendants' dogs, 120-pound Presa Canarios named Bane and Hera, were peaceable creatures that would take meat scraps from the local grocers, slumber quietly under tables of outdoor cafes and coexist with house cats. Hera had a heart murmur, and Bane had a torn knee ligament, veterinarians testified.
Defense attorneys called the witnesses in hopes of countering prosecution assertions that the animals were obvious threats to people and that Knoller and Noel should have done something about them before Whipple was killed on Jan. 26, 2001.
The final witness of the day, a retired Burlingame police officer who ran an animal transport business, described how Bane and Hera were among eight dogs he picked up from a farm in Hayfork (Trinity County) in April 2000.
"All the dogs were timid, placid -- I'm looking for a better word that describes . . . shy," James O'Brien said.
Michael Beachnau, a manager of Left at Albuquerque on Union Street in San Francisco, testified that Noel and Knoller were fixtures at his restaurant and kept their dogs outside under cafe tables. The defense showed photos of the dogs with their masters at City Lights bookstore, Enrico's Cafe and Mayflower Market.
"They were regulars," Beachnau said. "The dogs would sit under the table. I've seen many dogs. There was no difference to me."
Angelos and Lefty Prongos, brothers who own Mayflower Market, said that Knoller and Noel would tie their dogs to a parking meter or garbage can out front and that the animals were never a problem. Lefty Prongos said he even brought his wife to see the dogs and fed them meat by hand.
Heshe Stark, a private investigator who described herself as a close friend who worked for the defendants, said she had seen Hera only once, when the lawyers visited her Telegraph Hill apartment.
"She sniffed our feet, drank some water, turned around in a circle and went to sleep," Stark said. Her two cats were a few feet away, but Hera never made a move for them, she said.
E-mail Jaxon Van Derbeken at jvanderbeken@sfchronicle.com.
http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2002/03/07/national0733EST0518.DTL
Witness Describes Dramatic Delivery of Dogs, Against Defense Non-Fighting Dog Claims
March 7, 2002
A witness in the San Francisco dog mauling trial said he dropped off one of the huge dogs with a vanload of others in the dead of night and a group of men, including some with prison tattoos, emerged to claim them.
The testimony from James O'Brien, the owner of a transport service, was unexpected, coming in the midst of a defense effort to depict the defendants' huge presa canario dogs as gentle giants that were welcomed at fine restaurants and shops around San Francisco.
After hours of testimony about the calm demeanor of Bane and Hera, the dogs that mauled Diane Whipple to death, the courtroom mood changed abruptly.
O'Brien, under cross-examination, talked about transporting Bane and five other dogs to the Los Angeles area, where he said a group of men awaited.
O'Brien, who had been called by the defense to say how placid the dogs were during transportation, said he was hired by defendant Marjorie Knoller to haul the dogs.
Knoller and her husband, Robert Noel, are facing charges in the fatal attack on their 33-year-old neighbor by their two dogs on Jan. 26, 2001. The trial was moved from San Francisco to Los Angeles because of pretrial publicity.
O'Brien said he was hesitant about the job at first because he had never heard of the breed, and when he looked it up in a book and on a Web site he found that the dogs were "bred for fighting."
Asked by Assistant District Attorney Jim Hammer whether he meant dog fighting, he said, "It could be any kind of fighting, even bull fighting."
O'Brien said he told Knoller that "if they were aggressive we wouldn't transport them."
When he arrived to pick up the dogs at a Northern California farm, he said, they were on chains and were lunging. But the moment they were removed from the chains they became "submissive," he said, and he agreed to do the job.
He said when he dropped off the dogs, "Several people came out of the dark because they were expecting them." He said the group included two men with tattoos on their necks.
"It's what I would refer to as prison tattoos," O'Brien said.
Earlier in the trial, when the prosecution was presenting evidence, witnesses spoke of the defendants' ties to two members of the Aryan Brotherhood, a prison gang, and a plan by the prisoners to raise presa canario dogs for sale.
Knoller is charged with second-degree murder, involuntary manslaughter and having a mischievous dog that killed a person. Her husband faces the latter two charges.
Earlier Wednesday, proprietors of upscale San Francisco restaurants recalled well-behaved, quiet dogs that sat at their owners' feet, under tables or tied to parking meters.
The proprietor of a restaurant called Left at Albuquerque said he remembered the couple and their dogs.
"They were regulars," said Michael Beachnau. "The dogs would sit under the table. ... I've seen many dogs. There was no difference."
Superior Court Judge James Warren said the case is likely to be submitted to the jury on March 19.
©2002 Associated Press
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