Please welcome Guest Blogger Dylan Schaffer to Murderati!

The only serious disagreement I’ve had with my publisher in
the past five years related to whether the bio on the back of my first book
ought to refer to one of my particularly infamous cases (along with writing
books, I’m a criminal appellate lawyer). Although Peterson and Jackson and
others have since occupied the center stage, for more than a year my client,
Marjorie Knoller, was the nation’s leading villain. Knoller was the resident of
a fancy San Francisco apartment building. One day she left her apartment with
two enormous dogs; the animals got loose, and one killed a neighbor.

Knoller was charged with murder. Other lawyers represented
Knoller at trial and she was convicted. I (and my colleagues) took over the
case and convinced the judge who’d presided over the trial to toss out the
murder charge. Knoller was left with a manslaughter conviction and a four-year
sentence, which she served. (To see what a lawyer and his client look like
moments after a judge throws out a murder conviction, go here.)

Publisher was perfectly happy to publicize my books by
referring to other high-profile cases I’ve worked on involving rather unsavory
types–the Gambino family, a very sweet elderly lady who buried nine bodies in
the small backyard of her seedy Sacramento boarding house. But publisher felt
strongly that while the Knoller case might draw attention, it would also make
people hate me. Because it was my first book, and I knew next to nothing about
the business, I conceded the point. But if I had it to do over again, I’d
insist.

In an attempt to avoid precisely the fate my publisher
feared, let me be clear: the victim in the case died in a horrible, appalling
manner, and it’s not at all hard to see why the public was enraged at my
client: if you know anything about the case, you know that she acted
unbelievably irresponsibly in taking the dogs walking by herself, when she
quite clearly could not control them. Also, the dogs were owned by neo-Nazi state
prisoners, with whom Knoller (a Jew) and her husband had inexplicably close
relations, and the animals seemed to be raised for the purpose of protecting
narcotics operations or other nefarious activity. Perhaps most importantly,
after a dog in her possession attacked and killed a young woman, Knoller and
her husband displayed a stunning lack of contrition. It was hardly surprising
when the trial court judge later told the Knollers that they were “the most
hated people in San Francisco.”

Nevertheless, I am enormously proud of the work I did on the
Knoller case. That is so because (a) my client was factually innocent of the
charged crime and (b) the case and the result serves as a very effective
teaching tool. The lesson is simple: there may be a body, and there may be a
person who, from a lay perspective, seems responsible for the body; but there may
not be a murder.

(If you’re a real student of the case, then you know that
the result in the trial court was reversed by the Court of Appeal, and is now
under review by the California Supreme Court. I am confident the high court
will reinstate the trial court’s ruling, which is discussed below. Then again,
I could be wrong. In any case, the discussion that follows assumes my
colleagues and I are right on the law.)

Our books tend to be about bodies and the people responsible
for them. But there is widespread misunderstanding of the law of murder. This
is true in some very good books, I’m afraid. And I hope it won’t come as too
great a shock to learn that Law & Order has massacred the law of
homicide beyond recognition.

So, because dear Elaine has fled for the moment, and, in a
moment of profoundly dubious judgment, left me to fill her unfillable shoes,
and because the name of this here blog is Murderati, I thought I’d do a
quick primer. After you read the following, you’ll be better equipped to
discuss and/or write about the subject of murder than most criminal lawyers and
many writers of legal thrillers.

A corpse is tangible–you can touch it, smell it,
dissect it. It’s a real thing. A homicide exists at a considerably
higher level of abstraction, although even the writers on Law & Order would
correctly say that when a human being causes the death of another human being,
a homicide has occurred. But you can see where questions might pop up–for
example, what does cause mean? Knoller didn’t pull a trigger, so did she
really commit a homicide? In the end, though, the existence of what is clearly
a homicide–say, a gun to head killing–has no legal significance at all. You
can’t be convicted of homicide. The crime is murder.

But murder does not exist. The dictionary says murder
is the “unlawful killing of a human by another,” but that’s wrong, wrong,
wrong. In fact, as I’ll describe below, it’s wrong in precisely the way the
prosecutor and jurors got it wrong in the Knoller case. If a character in a
book you’re reading (or writing) says, “she murdered her husband”, I hope, now,
alarm bells will go off. The statement means nothing.

Truth is, murder is whatever we, or, more accurately, our
elected representatives say it is. (To make things simple, I’ll focus on
California; but while other states and the feds sometimes use different
terminology, the rules are usually very similar.) Murder is a statutory
wrapping around a concomitance of two things: certain kinds of conduct (say actus
reas and the judge will be impressed) and certain sorts of intent (or mens
rea). It’s just our way of saying that if you do X act, and you possess Y
intent, you will be punished according to rules set for in the California Penal
Code. If tomorrow the legislature decided to change the meaning of X and Y, or
if the California Supreme Court issued an opinion interpreting X or Y in a new
way, the meaning of murder would (and often does) change.

As of this writing, here’s how it works. Murder is defined
as the “killing of a human (or a fetus) with malice aforethought.” Immediately
we have reference to both X (conduct) and Y (intent)–X, you have to kill
someone; and Y, you have to do so with a particular sort of intent we call malice.

X is easy. You picked up the gun, you aimed, you fired, the
shot hit your target and the target died of trauma caused by the gunshot wound.

Y is not so easy. Malice is no more tangible than murder.
And there are hundreds of opinions discussing it, many of which disagree. But
there are some things we know. First, there are two kinds of malice: express
and implied. Express malice is easy to describe: if you intend to
kill someone, you have express malice.

(In California, there are two degrees of murder.
First-degree murder is simply X + Y
(where Y is express malice) + one additional element: the killing has to have
been the product of premeditation and deliberation. So, how are those defined?
Actually, that’s kind of a complicated question, and I think I’ll wait until
Elaine asks me back–yeah, right–to get into that. Suffice to say that if you
plan to kill someone, and you kill them, then you’re guilty of first degree
murder. And if you plan to kill, and you kill, and you kill under one of a
number of special circumstances detailed in the Penal Code–for example, two or
more victims, or in combination with some other horrid crime like rape or
robbery–then you’re eligible for the death penalty.)

The form of intent known as implied malice is the one
that made such a mess in the Knoller case. Here’s a clear example of an implied
malice killing: say I go out on New Years eve with a loaded gun and shoot
through the front window of a house crowded with revelers, and say I kill someone.
But let’s also say, as a matter of fact, that I didn’t intend to kill anyone; I
just thought it would be fun to empty my .9mm into a crowded residence.

In this case it’s not possible to say I intended to
kill anyone, so I don’t have express malice. But the legislature would like to
avoid morons like me firing at crowded houses, so they say that even if you
don’t intend to kill someone, if you do something you know has a high
probability of leading to the death of a human being, and your conduct in fact does
result in a death, then we don’t care about your lack of intent. We’re going to
punish you just as severely as someone who intends to kill.

In accordance with the statutory scheme, juries in implied
malice cases are told that to be guilty, the defendant must have “(a) intentionally committed an act; (b) the
natural consequences of the act were dangerous to human life; (c) the defendant
must have known the act was dangerous to human life; and (d) deliberately acted
with conscious disregard for human life.

So, what happened in Knoller? The prosecution in that case
conceded from the outset that my client never intended to kill anyone. So in
order to convict her of murder it had to rely on an implied malice theory. And
now you know that means it had to prove not only that her conduct resulted in a
death, but also that she knew her conduct had a high probability of
leading to such a death and didn’t adjust her behavior. The DA had to convince
the jurors that leaving her apartment with the dogs was the same as shooting
into a house filled with people.

The prosecution offered plenty of evidence that Knoller knew
the dogs were dangerous: in the weeks Knoller and her husband had the dogs the
animals snapped and growled at various people, they lunged repeatedly, and they
had once killed two animals on a farm. One of the dogs bit Knoller’s husband on
the hand when he tried to break up a dogfight.

Given this evidence, the DA could easily make the argument
that Knoller was on notice that the dogs would snap, growl, lunge or bite. But
the state produced no evidence at all that Knoller knew the dogs would kill
a human being. And as you now know, because you’re an expert on the law
of murder, Knoller could not have been guilty unless she knew her conduct was
dangerous to human life and acted in deliberate disregard for that
danger. Amazingly, the prosecution’s own expert testified that instances of
dogs killing people are so extraordinarily rare, that as statistical matter,
dogs don’t kill people. Therefore, Knoller could not have predicted her dog
would kill because (a) her dog had never killed and (b) dogs, unlike guns fired
into houses, don’t kill.

When the judge threw out the murder conviction based on
precisely this reasoning, the prosecutor fumed that the court had ignored the
will of the jury, which had convicted Knoller of murder. The problem with this
argument, as the DA well knew, is that the jury had been lied to about the true
nature of implied malice (an error you would never permit given your newfound knowledge
of murder law). Basically, during the trial, the DA convinced the court to tell
the jurors that if Knoller knew that the dogs were capable of causing serious
bodily injury, then she had implied malice. But eventually the court saw
that it had been wrong. Injury is not enough; to be a murderer, Knoller had to
have known that the dogs would kill. She couldn’t have, and didn’t.

Once again, so I don’t spend the rest of the summer getting
flamed and fighting off horrified e-mails, I’m not saying Knoller was a
conscientious dog owner, or a nice person, or that the victim did not die an
entirely undeserved, savage death. My point is just this: there was a corpse.
There was a homicide–Knoller didn’t pull the trigger, but she took dogs out
into public she knew might snap, lunge or bite, and so it’s clear she caused
the victim’s death. And there was (as the foregoing dictionary definition
suggests) the unlawful killing of a human being. But there was no murder.

Dylan Schaffer writes the Misdemeanor Man series. His new
book, Life, Death & Bialys: A Father/Son Baking Story, is about life,
death, bialys, fathers, sons, and baking. It arrives in September. Dylan also blogs and globs, stop by and say hello.