As stated above, the murder charge against Knoller was overturned by the trial judge, who granted Knoller a new trial. The District Attorney appealed that decision. On May 5, 2005, the Court of Appeal announced that it agreed with the District Attorney.

The Court of Appeal wrote an unusually lengthy opinion. A section of the opinion dealt with the meaning of implied malice. The court noted that some prior decisions defined implied malice as essentially the conscious disregard for human life, while other decisions defined it as an awareness that the act is likely to result in great bodily injury. The appellate court concluded that the trial judge should have focused on great bodily injury and not death. The court said, "the question is not whether Knoller knew her conduct was likely to result in the death of someone, but whether Knoller knew her conduct endangered the life of another and acted in conscious disregard for life or in wanton disregard for life."

Then, on July 26, 2005, the California Supreme Court nullified the Court of Appeal's decision and agreed to review Knoller's conviction. The Court's order limited the issues to two: (1) Whether the mental state required for implied malice includes only conscious disregard for human life or is satisfied by an awareness that the act is likely to result in great bodily injury? (2) Whether the trial judge abused his discretion in granting the motion for new trial under Penal Code section 1181 (6).

The California Supreme Court heard arguments on March 6, 2007. Members of the court questioned the defense attorney and the deputy attorney general as to whether the existing jury instruction on second degree murder was correctly written, what the prior California cases have held, whether the trial judge focused on both elements of the test for second degree murder, how great the probability of death must be (a high probability or just a substantial chance), what type of risk should be included (a risk of death, of severe bodily injury, or simply bodily injury), whether a dog's act of snapping at people should be regarded as giving notice of an intent to kill people, whether an appellate court should reverse a trial judge when the latter nullifies a guilty verdict in his role as the "thirteenth juror," and what the remedy should be if the supreme court agrees essentially that the trial judge should not have granted the motion.

The California Supreme Court's ruling was announced on May 31, 2007. Substantially as predicted by Attorney Kenneth Phillips (fn. 1), the court reversed the trial judge on the ground that he incorrectly applied the test for second degree murder. The court held that a defendant can be convicted of second degree murder if he has "awareness of engaging in conduct that endangers the life of another." The justices also disgreed with the trial judge's concern that Knoller was convicted of murder while Noel was not even charged with it. The high court remanded the case to the trial judge for his reconsideration.

The highest court's reasoning was as follows:

[T]he Court of Appeal set the bar too low, permitting a conviction of second degree murder, based on a theory of implied malice, if the defendant knew his or her conduct risked causing death or serious bodily injury. But the trial court set the bar too high, ruling that implied malice requires a defendant's awareness that his or her conduct had a high probability of resulting in death, and that granting defendant Knoller a new trial was justified because the prosecution did not charge codefendant Noel with murder. Because the trial court used an incorrect test of implied malice, and based its decision in part on an impermissible consideration, we conclude that it abused its discretion in granting Knoller a new trial on the second degree murder count. It is uncertain whether the court would have granted the new trial had it used correct legal standards. We therefore remand the matter to the Court of Appeal, and direct it to return the case to the trial court with directions to reconsider defendant Knoller's new trial motion in light of the views set out in this opinion.

To download and read a copy of the Supreme Court opinion, click here.

The California Supreme Court's decision meant that Knoller could be sentenced to an additional prison term. The lower court was required to weigh the evidence and decide whether it satisfied the Supreme Court's formulation of the second degree murder standard. Before getting to that, however, there were two other developments.

The first pertained to the identity of the judge who would make the decision. James Warren was the trial judge in the criminal case. By time the matter was remanded to the trial court, however, Warren had retired from the bench and was working as a professional arbitrator and mediator. He notified the Superior Court that he would make time for the Knoller case, but his offer was rejected. Superior Court Judge Charlotte Woolard was imposed in his place. She had not attended one minute of the original trial. All she had was the transcript.

Judge Wollard's first task was to rule on Knoller's motion for a new trial. In August 2008, Wollard denied it, stating Knoller "knew her conduct endangered life." Interestingly, Wollard ignored the Warren's finding that Knoller did not realize her dog was capable of killing. Wollard formed a different opinion from reading the transcript of the trial, not from being there and hearing the testimony.

On September 22, 2008, Judge Wollard sentenced Knoller to the maximum penalty: 15 years to life in prison. Her attorney announced to the press that Knoller would file another appeal. Among other things, she will challenge the sentence being rendered by a judge who did not attend the trial.

The answer to the question as to whether the Knoller conviction might be reversed is that it cannot be reversed at this point in time, because all appeals have been taken, and Knoller has lost all of them. There remain some practical and legal issues worth discussing, however.

The California Supreme Court decision is particularly difficult to apply in a canine homicide case, including the Knoller prosecution. The court said that second degree murder rests upon the defendant's awareness that his conduct would endanger the life of another. That will always be difficult to prove when the killing is accomplished by a dog. In California there is a legal presumption that dogs are friendly. Compare a dog case to a stabbing or shooting: when there is a fatal stabbing or shooting, the prosecutor does not have to establish that the knife or gun was indeed a deadly weapon, because their injurious potential is well known. Therefore a case of canine-inflicted murder requires proof of something not necessary in many other crimes, namely that the instrumentality that accomplished the act was known to be the opposite of friendly and beneficial to human beings.

This proof is especially difficult because of its subjective nature: remember that second degree murder requires, on the part of the defendant, a subjective awareness that his conduct would endanger the life of another. Most dog owners believe that their pets are friendly, helpful and loving -- Marjorie Knoller believe this and testified to this effect in her trial. In this type of case, that conduct may consist of merely letting the dog out or taking for a walk (Knoller herself took the dog to the roof because the animal was very sick the day it killed Whipple). Exactly how would a prosecutor prove that the dog owner had this subjective awareness?

There is another reality that a prosecutor will have to face in this kind of case. It is very rare for a dog to kill a person. People are killed more frequently by lightening than by dogs. In the United States, approximately 70 million dogs kill only 35 people per year. For that reason, a walk with your dog is more likely to see you killed by lightning than to see a neighbor killed by your dog. When it comes to the actions of a dog, it is difficult to anticipate that the death of a person might occur when the dog is exposed to other people. Keep in mind that the Supreme Court specifically ruled that having an awareness that one's dog might inflict severe bodily injury is not sufficient for second degree murder charge. If a dog owner has any appreciation at all of the vicious nature of her pet, it is most likely that she appreciates the possibility that it will bite someone, not kill them. This will be another barrier to these prosecutions in the future.