Episode 239: Who Let The Dogs Out?

 

Jessa: I’m Jessa.

 

Nick: I am Nick.

 

Jessa: And we are back.

 

Nick: We are. We are back as the Getting Off podcast because that is what we are.

 

Jessa: Always Getting Off. Always Back. Getting off in the back.

 

Nick: So.

 

Jessa: Oh. That’s a new joke for me.

 

Nick: Say it again. I missed it.

 

Jessa: Getting off in the back.

 

Nick: Okay. Nice. I’m laughing on the inside.

 

Jessa: Alright. We are recording on location. Nick and I are going to present tomorrow, so we are in Chicago, so that’s fun. It also means that our audio setup may be marginally different than normal, but don’t worry. We’re working on that in general.

 

Nick: We are. And like. Uh oh. The audio quality might be different. Mostly different for us could mean better.

 

Jessa: It almost always does.

 

Nick: Yes. But joking aside, we are working on it with the assistance of some of you good folks.

 

Jessa: So thank you for everyone that’s responded. We are sorting through that. That’s rad. Like. That’s cool. We are going to do an introduction. This is gonna be like a quasi policy episode, quasi timeline. And this is a Patreon requested case.

 

Nick: Yeah. This is actually, it’s gonna wind up being an excellent recommendation or request.

 

Jessa: I love this. Just as a sidebar. I love when we get cases from people because I start research and I’m like, aw fuck. What did you guys do to me? And then after a minute, I’m like, oh. No. This is actually really cool.

 

Nick: Yeah. And this one, the names didn’t ring a bell for either one of us, like right off the bat. Like when we read the names, which was the way the Patreon referred to this case, didn’t ring a bell. Then as soon as we looked it up, I knew exactly, I did remember this case. It happened in 2001. It involves dogs. So at that point, I did remember it. But I really did not have a sense because, let’s see. This happened shortly before I, like it actually went down, the offence. The death occurred shortly before I started law school, so neither one of us were lawyers when this happened.

 

Jessa: No. And actually, there’s some really interesting side plots that are somewhat atavistic which we’ll get to. But. Just in terms of. We’re talking about a 2001 case. Let’s kill the spoiler and say it’s the death of Diane Whipple out of California. There are two co-defendants. They are a husband and wife. They are Marjorie Knoller, K-N-O-L-L-E-R. And Robert Noel, N-O-E-L.

 

Nick: Indeed. So where did we finish up last time? We are coming out of the Amber Geiger cases. Case. Excuse me. That’s what we finished up. I’m thinking of transitions. Cause this is really a transition episode. I mean. Maybe it’s a little bit of policy, but not that. I don’t think this is really policy. So we’re transitioning into this case.

 

Jessa: Yes. But we have some things to say.

 

Nick: We’ve got..

 

Jessa: We always have things to say.

 

Nick: Yes. So this is actually gonna be a fascinating case. It’s got. We’re not gonna do it today, this time. But there is going to be some totally serious, heavy duty legal issues that are, I think, kind of complicated.

 

Jessa: Statutory construction.

 

Nick: Oh. We’ll riff on that today.

 

Jessa: We’re gonna talk about that. We’re gonna talk about words. What the fuck do they mean? That’s what we’re gonna talk about. But before we talk about that, we want to bring this into a broader picture, which is so many of the cases that you guys, the listeners, are interested in are cases that have, sort of, I’m gonna say creative facts, even though they aren’t designed by someone, or unusual facts, that have to be applied to pretty traditionally straight forward law.

 

Nick: Right. And I think this case is a little bit like the Michelle Carter case.

 

Jessa: Yeah. And why do we say that? So let’s do some basic facts so you guys know what we’re talking about, then we’re gonna step out and do some policy analysis and then, next episode, we’ll step back into the legal analysis of the case.

 

Nick: Good idea cause I realized, as I just said that, I’m probably getting us ahead of ourselves.

 

Jessa: So. Okay. What’s the deal? We’re going back in time to 2001. And we’re in California. We’re in the San Francisco Bay Area. And Marjorie and Robert are married. They are both attorneys. And apparently, Marjorie has at least some type of criminal practice because they meet a fellow with the last name Schneider, and the street name and I’m saying this on purpose, Cornfed. Cornfed, who is, wait for it, a fucking nazi because of course he is. Why would there not be a nazi named Cornfed in this story? This is what I mean when I get your guys’ cases.

 

Nick: Right.

 

Jessa: Okay. So there’s a Cornfed nazi who is 38 years old and is adopted by this couple.

 

Nick: Well, yes. So there’s a lot going on here. He’s adopted, but it’s pretty weird to adopt a 38 year old. That part’s strange. Also like, he’s not really available in the world to adopt in any way that I might envision because he’s in prison.

 

Jessa: Well, he is in prison. And he’s also an adult.

 

Nick: Right. So there is two pretty unusual facts about that. Like. We don’t know yet (we’ll get there) why they did that.

 

Jessa: No. That’s just an interesting side plot of many interesting side plots in this tale.

 

Nick: Right. So Paul Schneider is a member..

 

Jessa: Cornfed. We’re only calling him Cornfed.

 

Nick: Look. I appreciate that detail. Like. It does something for me. It does a lot more for you.

 

Jessa: I’m all about that.

 

Nick: You love that particular detail.

 

Jessa: I really do.

 

Nick: So Cornfed. There you go. In 2001, is serving a life sentence in Pelican Bay prison in California. He’s a member of the Aryan Brotherhood prison gang and, right. The husband and wife attorneys come into contact with him, or make his acquaintance by virtue of some, you know, prisoner litigation appellate work that they are doing.

 

Jessa: And I don’t know that they actually worked for him. I think they met him while they, while she was there, doing work for other people.

 

Nick: That’s my understanding, is they were not actually, neither one of them was actually his attorney, but it was by virtue of this program that they made his acquaintance.

 

Jessa: And Cornfed, like any nazi prisoner, has hobbies. Okay? His hobbies involve the remote raising and training, I guess, I’m struggling with words here, of a particular breed of dog for purposes of engaging in dog fighting. Now, some of you may be asking, why does a guy that’s serving a life sentence need to be remotely involved in the training of vicious dogs in an illegal dog fighting market? That’s a very good question, but I don’t have the answer to that.

 

Nick: The answer may be as simple as, people make strange, bad decisions.

 

Jessa: So you have the name of the dog. It’s like a mastiff pitbull hybrid. It’s some huge dog.

 

Nick: Yeah. It’s a breed of dogs called Presa Canarios.

 

Jessa: Thank you.

 

Nick: Yes. And they are a breed that is, it’s a breed that has existed for a really long time. Like, hundreds of years going back to the Canary Islands in Spain. That is where they historically came from. And they are descended in some way from mastiffs, as many breeds are. They are not as big as your traditional mastiff. The males weigh somewhere between 100 and 125 pounds. The females weigh somewhere between 90 and 110 pounds. That’s still a big dog.

 

Jessa: Yeah. It’s a person-sized dog.

 

Nick: Yes. And this breed almost went out of existence after dog fighting was made illegal in the Canary Islands under, I think, Franco, in Spain. And. But then it was sort of resuscitated after it had been on the verge of extinction. And then the breed was brought to America in the 1990s. So this would’ve been a pretty exotic, unusual breed in the United States, in 2001.

 

Jessa: Look at you, with the dog history.

 

Nick: I mean, I used to go to dog shows.

 

Jessa: I mean, I love to watch dog shows.

 

Nick: I mean, I went to Westminster three years in a row? Back in the day. Just for fun.

 

Jessa: I mean, I watch it all the time. It’s very relaxing.

 

Nick: That is a rabbit hole that I can go down for a long time, but that’s not this podcast. That’s some other podcast.

 

Jessa: Some other podcast.

 

Nick: Okay. So the point is this is a breed of dogs that are pretty big. You know, 100+ pounds. They have, historically at least, been used for dog fighting, so they are.. Also in researching this. When you read about a dog breed, and they say certain things right off the bat, those are sort of red flags and clues. And for this breed, they say that they require very early socialization and obedience training, which means, you gotta be careful with this breed.

 

Jessa: Yeah.

 

Nick: Perhaps you might say that about any breed where they weigh as much as a human being, but, you know. This is a breed of dogs that you need to be careful with. And perhaps, that history makes it not coincidental that a guy in prison is looking to start a breeding operation of that particular breed.

 

Jessa: Right. So however he is able to orchestrate this, he does and these dogs find themselves in need of a home. And so this lawyer couple, because they are both lawyers and in fact, Robert Noel was an assistant US attorney at point, and he had worked for the federal government doing tax litigation, as well. He ultimately went into private practice. But these two attorneys, in addition to adopting this Cornfed nazi as an adult, also took in two dogs with the names of Bane and Hera, H-E-R-A, after the goddess.

 

Nick: Indeed. And so, how did that come about? Well, it came about after this remote dog breeding operation weirdly kind of fell apart. Turns out, that didn’t work. There were disagreements. There were disputes between, you know, the guy in prison and I’m sure very reliable people who were partnering with him from outside the prison. So this whole operation was up and running for not very long. After this happened, it was, shockingly, shut down by the government. But in the meantime, two of the dogs that they produced went into the care of these two lawyers.

 

Jessa: Right. And they lived in an apartment building that had other tenants. There were common areas. And Marjorie was going to take the dogs up to the roof where, I assume, there’s like, some dog, you know, waste area like some green space or whatever. She’s going to take the dogs up to the roof when she sees her neighbour, Diane Whipple, who’s carrying groceries and is going to enter her nearby apartment. The dogs attack Diane Whipple. We’ll talk about the contradictory facts that are presented at a later date. Some people say, I mean, Marjorie certainly testified that she tried to stop the dogs. Other witnesses dispute that. We’ll get into that later.

 

Nick: The bottom line, though, is that these two dogs got loose, attacked Diane Whipple, and killed her. She was bitten 70-some odd times.

 

Jessa: 73 times and had 77 injuries. Basically, everywhere but the soles of her feet and her scalp.

 

Nick: Exactly. There was also some question about was it, in fact, both dogs, or was it only Bane?

 

Jessa: Right. Cause Bane gets euthanized immediately. Bane is killed that day. Hera gets like, a temporary reprieve and is put down some months later.

 

Nick: About a year. Hera got more due process than Bane got.

 

Jessa: Oh yeah. Hera totally did.

 

Nick: Doggie due process. Hera was subject to a dangerous dog hearing which clearly, she lost. 

 

Jessa: And we’ll talk about what that means, as well.

 

Nick: Yes. So. You know. Those are the basic facts. The bottom line here is that this woman was killed..

 

Jessa: Viciously attacked by this dog. These dogs.

 

Nick: Yeah. It’s gross and scary. But she was killed by big scary dogs. And the question is, what do we do with that, legally?

 

Jessa: Right. And I would suggest that the concept of the dog bite is actually basically a law school torts question. Like, one of the examples that I think most first year law students get about negligence is the idea that you have a duty to reasonably care for your dogs, such that it is not a danger to other people.

 

Nick: Right.

 

Jessa: And there are lawyers that actually have whole practices surrounded about like, dog bite litigation. Civil litigation.

 

Nick: You can go into some lawyer’s, their firm’s website, and it’ll describe their areas of practice and it’ll be like, three or four things. One of which is ‘dog bite’. Because there are tons of dogs in the world. We love dogs. Humans love dogs. Americans love dogs. So there are a lot of dogs, and, you know, sometimes dogs bite people.

 

Jessa: Right.

 

Nick: Not infrequently.

 

Jessa: Usually that looks like a civil suit. And in fact, what started in terms of the first litigation that happens here, the partner of deceased Diane Whipple files a wrongful death suit against the couple. Now, I would note that Robert Noel was not present at the time of the attack. He was elsewhere. So flag that. We’ll put a pin in that. But files a wrongful death lawsuit, both against the couple and against the apartment building, I assume alleging that they shouldn’t have allowed the dogs, though the civil suit is a separate issue. One atavistic side plot that comes up is because this was a lesbian relationship at the time, there was a challenge to the partner’s standing to be able to file the wrongful death because they weren’t married, cause marriage was not legal for lesbians at that time in the state of California. And so she was filing basically as a domestic partner. And there was kickback on that. That’s the civil litigation. But it’s an interesting side point because, of course, today, that challenge probably wouldn’t exist in a meaningful way.

 

Nick: Right. And she did succeed.

 

Jessa: Yes. She did, ultimately, succeed in bringing the suit.

 

Nick: Yeah. And you know, won a significant judgement against Knoller, in particular.

 

Jessa: And so, kind of where we’re left is there’s no immediate arrest here, right? Even though Bane gets put down and when we talk in detail about the facts, you’ll hear that there’s some evidence to suggest that Bane had been violent before. So maybe that had a roll in it. But what’s interesting here is that this case ultimately isn’t just a wrongful death case or a tort. A civil harm. It is brought criminally against both husband and wife. And we want to talk about some of the policy implications of that, but before we do, we want to talk about our sponsor.

 

Nick: We sure do. We want to talk about our friends Wix.com. You can get started with Wix right now by going to wix.com. That’s W-I-X dot com slash podcast to get 10% off. That’s W-I-X dot com slash podcast. Over 140 million people use Wix for their website. Think about that. 140 million.

 

Jessa: So many people

 

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Jessa: You can add chat box, use AI, IA. Artificial Intelligence. Man. Anyway. To take advantage of this option, you gotta go to wix.com. That’s W-I-X dot com slash podcast to get 10% off. That’s W-I-X dot com slash podcast. Okay. So I think part of the reason that this became a criminal case is because in what I will openly describe as a mindblowing feat of stupidity for an attorney..

 

Nick: Right. Let’s go back to that in a minute, but keep going forward.

 

Jessa: In a mindblowing feat of stupidity..

 

Nick: She did what?

 

Jessa: Marjorie Knoller decided that, two weeks after Diane Whipple’s death, she would go on Good Morning America and give a fucking interview about this.

 

Nick: Right. So that’s what she did, and then let’s go back to the middle of that. Marjorie Knoller is a lawyer.

 

Jessa: And handles prisoner litigation, so she has some criminal law experience, yo. This is a person who knows the deal with statements.

 

Nick: You are related. I mean. You know. It was disputed. It was debated. There was disagreement about the level. That’s really what this whole case is about, is what do we call this, legally? What kind of responsibility do we assign to her actions in this kind of case? But setting that aside, you know that you are responsible in some way, or connected in some way to the death of another human being.

 

Jessa: You have to know that you’re at least, potentially, on the hook civilly. Even if you don’t think this is gonna be a criminal case..

 

Nick: You don’t have to be a lawyer to know that.

 

Jessa: You have to know that you’ve got, any lawyer would know that there’s potential for liability out there, okay? Like, this is absurd.

 

Nick: Also as a matter of decency and humanity. As a human being, what is your purpose for going on to Good Morning America at all? Like, what is it.. Why are you doing that at all?

 

Jessa: I have no answers for this. But she goes on Good Morning America and basically victim blames this entire time. She’s like “Look. This chick could’ve gone in her apartment at any point. I would’ve just gone in my apartment and closed the door. I don’t really get why she didn’t. Yeah yeah yeah, I tried to stop the dogs, but really, that’s kind of on her, you know what I’m saying?”

 

Nick: Okay. I have so many different reactions to that, one of which is the level of badness of what she said, what you just repeated. I suppose it’s consistent with the logic of someone who thought it would be a good idea to go on television at all. Right? Like. It was a terrible idea to go on TV. It was then a terrible idea to say things like that.

 

Jessa: This. Like. It is amazing to me that regular people do this. It is unfathomable to me that a practicing attorney would choose to give a nationally televised interview before any civil litigation had been brought. Well. Like. In the aftermath of this tragedy.

 

Nick: I’m saying. Now, we haven’t talked about all of the bad decisions or questionable decisions that attorney Knoller, she still was an attorney at that time, made. There are a lot of weird things that she did and maybe we’ll talk about those a little later. But. Fine. This woman had a law degree. She was a practicing attorney. Okay. But there’s a lot of crazy going on here.

 

Jessa: Oh, so much. And this wrongful death suit gets filed and the prosecutors are starting to look at this case because like, this is a pretty gruesome death, right? Like, this woman was viciously attacked. And they’re looking at the homicide statutes in California, and I think this is more of the policy aspect of this. There isn’t a homicide statute that, like, there’s no homicide that’s like, ‘death by angry dog’. Okay? Now there is a felony statute about carrying or keeping a mischievous dog.

 

Nick: But that is not..

 

Jessa: In California.

 

Nick: That’s something different. That is, that’s a criminal law, correct?

 

Jessa: Yeah.

 

Nick: Okay. So that is, one thing, okay. Let’s go back all the way back to the very beginning of this. What do we mean by, what are criminal laws?

 

Jessa: What are laws?

 

Nick: What is legal? So there are things, there are laws that make things illegal but not illegal in a criminal capacity, right? So we have, things can be illegal, but not criminal.

 

Jessa: Speeding tickets.

 

Nick: Speeding tickets. Torts. Like, most torts are.. Certainly if you committed a crime, you probably also committed a tort. But there’s lots of behaviour which is tortious, which, by the way, is a fantastic word, that is not criminal. So, you know. I always think of it as tiers of how bad something is that we have collectively made that decision, right? Something that is tortious, we say “This is bad. You’re not allowed to do this.” And so, there are a variety of things that can happen to you if you do it. But we’re not going to take away your liberty if you do that. So there’s a line in the sand when we hop then into things that are criminal, and we say “These things, we so disapprove of, that if you do them, we may take away your liberty.” So I mean, like, that’s really like, what we’re talking about here because, right. As we said, dog bite, the land of dog bites is fertile territory for tortious, civil actions. But what do we, and normally, it is not the land of criminal laws other than like, this mischievous dog law that you’re referring to, that statute in California. That makes it a fairly low level crime to keep a dog that is..

 

Jessa: Mischievous. Whatever the hell that means, legally. Like. And you and I both laughed at that. We were like, this feels kind of charming. Like.

 

Nick: You know. Mischievous, to me, suggests that this isn’t really that egregious of a crime. Do you know what I’m saying? It’s like, mischievous sounds like, “Oh, you rogue-ish bad boy.”

 

Jessa: “You rascal. You imp.”

 

Nick: “You charming bad boy. You naughty little dog. You’re mischievous.” Like, mischievous, you call someone mischievous, you’re not condemning them.

 

Jessa: You think of like, sprites or fairies. You don’t think of a dog that goes for the throat.

 

Nick: Or Eddie Haskell, or something like that. Right? There’s some measure of charm or affection implicit, to my ears, in the word ‘mischievous’. Like. Mischievous is a totally different connotation than violent or brutal or dangerous.

 

Jessa: Right.

 

Nick: It’s not ‘keeping a violent animal’. That’s not the name of the statute.

 

Jessa: Right. But so, in part, because there was some public outrage in response to the press that was generated. These two are both investigated and ultimately, quite a bit later, charged.

 

Nick: They’re indicted..

 

Jessa: By a grand jury.

 

Nick: Two months later, so the, Diane Whipple was killed at the end of January of 2001 and they were indicted by a grand jury in March. So. But right. Not immediately. Right? And they, and talking about some of the other cases we’ve discussed, what it means to be arrested, what does it mean to be arrested via a criminal complaint or information versus what it means to be formally charged via grand jury? And that’s how these folks wound up being charged. Knoller was indicted for second degree murder and involuntary manslaughter. Now. What do those words mean? Good question. That’s part of what we’re gonna talk about.

 

Jessa: Right.

 

Nick: Her husband who, remember, was not there when this went down. He was indicted for involuntary manslaughter alone. She was indicted on that and second degree murder, and again. I don’t actually, like. We’re practicing lawyers. Those words don’t, like, automatically have any particular meaning to me.

 

Jessa: And they vary from state to state cause some manslaughter statutes look a lot like our reckless statutes. Some look different. Like, I mean.

 

Nick: Right. Exactly. So it’s all, the devil’s always in the details. What does that define to mean? Define, statutorily, to mean? Something we’re gonna delve into is, is it always clearly defined, statutorily, or do we have to turn somewhere else to understand the meaning of these words? And in cases like this, where I think the Michelle Carter one, really the battle is over, what do these words mean? How broadly are they applied? Right? Because the question, like. When someone shoots someone, that’s not an exotic legal analysis.

 

Jessa: Form of homicide?

 

Nick: Well. Right. Like. We know, we’re familiar with that. We don’t struggle, generally speaking, to figure out like, what level of responsibility or culpability. If you shoot someone with a gun, the laws envision that. I don’t really think criminal laws envision this case.

 

Jessa: What you’ve got here cause like, a gun doesn’t have any independent agency, right? Like, a gun only fires when someone pulls a trigger. At least, if it’s functioning properly. Whereas dogs, while not people, do act on their own volition.

 

Nick: They’re living creatures. And they’re not typically thought of as weapons, typically.

 

Jessa: Usually not, no.

 

Nick: Right. And so the question here, I mean. People were outraged by this and you know. We’ll talk more about the facts in coming episodes. But it’s not hard to understand why people were outraged because this was brutal and awful. Right? And you know. Some of the facts were very concerning. Like, Marjorie Knoller’s presentation as you described, for example, on Good Morning America was not sympathetic.

 

Jessa: No! Also like, just say nothing, yo. How is this that hard? You don’t have to..

 

Nick: Of course. But this is a person like, there’s a lot of bad decisions that she made and you know, expecting someone who makes chronically bad decisions to suddenly start making decisions might be foolhardy.

 

Jessa: Right. But what I think is interesting about this, right? Is that what we’re presented with on just a fact basis here is what appears to be a fairly egregious wrong, right? Like, someone died in a way that feels pretty preventable because normally dogs don’t kill people. Like, lots of us have dogs. They don’t go around killing people.

 

Nick: Right. And Diane Whipple was a very sympathetic human being. And she was doing, of course, nothing wrong. She did nothing to provoke this, right? She was coming home at the end of the day with groceries, which we all do.

 

Jessa: So the reaction from the prosecution is like, “Well, gosh. It feels like there should be some responsibility beyond civil liability, but what do we do about that?” And what you and I talked about off mic was that sometimes, a sense of justice requires being creative in your prosecution. And I drew the analogy to the changing law in Wisconsin which is, we didn’t have a statute that criminalized strangulation until like, eight or nine years ago. Like, it passed while I was a practicing lawyer. Because I actually tried cases where prosecutors attempted to criminalize strangulation by charging it as an aggravated battery or charging it as second degree recklessly endangering someone’s safety, where they would try to pigeon hole this act of strangling someone into the existing criminal law because there was no specific law that said strangling people is illegal.

 

Nick: Right. So let’s be clear about this. It’s not that strangling a human being was legal in Wisconsin until 2007 or 2009 or whatever it was. It just, there was no law that made that specific act, by itself, a crime.

 

Jessa: So what they had to do was find another way to argue that, and ag vat is something that, under Wisconsin law, intends to do great bodily harm but only does bodily harm. So it only restricts the breathing, but it could’ve killed somebody. That’s one theory. Another theory that I saw it prosecuted under was second degree recklessly endangering safety, which is that you engage in conduct that you should know could really hurt somebody. I’m oversimplifying that.

 

Nick: And even after the strangulation statute was passed, that remains a fairly challenging crime to prove.

 

Jessa: Right.

 

Nick: I mean, I was a domestic violence prosecutor, so we would charge that, not infrequently, but because of the nature of strangulation, that can be very difficult to prove. It’s not unusual for someone to strangle someone and not leave any visible evidence that it happened.

 

Jessa: Right.

 

Nick: Right? So the burden of proof being what it is, that is, in my experience, that is a relatively frequently charged crime and a relatively frequently dismissed crime. Like if you’re charging somebody with half a dozen different crimes of domestic violence, one of which is strangulation, that’s a likely candidate to be dismissed as part of a plea deal.

 

Jessa: Right. Because it’s hard to prove. And so you see this all the time, right? We don’t have statutes that are like, “Hey. You can’t throw someone out a window.” What we have is “You can’t kill people. You can’t batter people. You can’t do things that are going to harm people on purpose.” And those are designed to be sort of umbrella protections against criminal conduct.

 

Nick: Right. Now. Okay. So yes. That is true. And there’s a tension there between, you know. You want to capture, I think people who write statutes and everytime you and I start a new case, we get a bit of an education in this because the laws, state to state, are different. The actual words that make up the criminal laws in every state are always somewhat different. And so you get a sense of, you know, statutory construction, like. I mean. Look. Killing: bad. Okay. Everybody knows that. But how do we move from there to actually writing a specific law that criminalizes, you know, a type of behaviour that can actually be identified? Cause one issue, one I talked about earlier, is statutes can be unconstitutional if they are vague or overly broad, right? And one of the reasons for that is there’s a notion that in order for the government to come after me for some set of behaviour, I have to be on notice that it’s..

 

Jessa: A problem.

 

Nick: Yeah. And if a statute, if a law is so vague that no one can really determine what that actually is designed to criminalize, then perhaps it is an unconstitutional statute. So that’s one challenge. But in looking at California’s statutes, they’re written, their homicide or their murder or their death statutes, they’re written in a way that I think is kind of weird.

 

Jessa: Well, it’s old timey, to be sure.

 

Nick: That’s one part of it. So, okay. So what do we mean? In California, and the reason I’m bringing this up is because if you’re saying we don’t write a law that says “It is a crime to defenestrate a human being”, right? Cause that’s so specific, and you’re like, that’s not gonna cover that much. So instead we write a law that says, for example, “Murder is the unlawful killing of a human being or fetus with malice aforethought.” Okay. That is the very first words of the California homicide statute. Okay. And then I knew from this case that, and we’ve told you good folks that Marjorie Knoller was charged with second degree murder and involuntary manslaughter, where her husband was charged, indicted only on involuntary manslaughter. So then you’re working your way as a lawyer through these statutes or the penal code, as California calls it, and you’re like “I’m aware that there’s something called second degree murder. That means there must be something called first degree murder. I wonder what those two things are.” Getting the answer was more complicated than I anticipated.

 

Jessa: Yeah.

 

Nick: Because you gotta scroll down for a ways. They don’t just give it to you. They kind of bury the lead, then they define first degree murder as a whole slew of fairly specific things. And then they define second degree murder as anything else. Anything else that was unlawful killing of a human being with malice aforethought that wasn’t one of those things we just told you about.

 

Jessa: Right. And as it turns out..

 

Nick: Is that the best we can do?

 

Jessa: I mean, it’s very sloppy. And as it turns out, there’s a bunch of case law, surprise surprise, trying to define all of those words. And also delving deeper, and we’ll get into this next time, about, do you need to expressly have malice or can it be implied by the conduct?

 

Nick: Right. This is like, the actually, pretty complicated and really legal, legal issues. Do you know what I mean? These are like, old timey, as you said. I almost think like, they almost feel like intentionally opaque. Like blackstone era legal words. They are just not defined well. We’ll get into that in the future, but that’s a really nerd, legal part of this. But to get back to the larger point is, what do we call something that feels horrific and awful and your gut reaction to it? I think a lot of this was..

 

Jessa: People feel like there should be some responsibility here beyond having to just write a cheque.

 

Nick: This feels criminal. Like, what happened here feels deeping egregious. Because these people were keeping these two massive dogs and we’ll talk more about, you know, the history or the disputed history of these dogs, both the breed and these specific animals later. But, you know, kept them in, you know, this particular place in a city, yadda yadda yadda and allowed them to get loose and kill another human being in, like, a horrific way. So like, the gut reaction of most people would be like, “That feels really wrong.”

 

Jessa: Right. And so what I think is interesting is the tension between trying to sort of square the circle of, we have statutory language that doesn’t quite fit our facts, but we have this deep sense that there needs to be criminal liability. And I feel like this case, and Michelle Carter’s case, have some similarities in that there was creative charging and as you and I discussed off mic, on the one hand, there’s a lot of opportunity for prosecutorial overreach in such creative charging decisions. But on the other hand, the laws are probably written in a way, such that they can encompass more than just the obvious type of conduct. And makes some logical sense because we don’t want laws to be so narrow that people are able to find ways around these really specific rules.

 

Nick: Indeed.

 

Jessa: It makes me think of one of my good friends, right? He had an apartment years ago, and he hung a hammock up in his living room. And his landlord was like, “What the hell? Why is there a hammock here?” And he said “Well, nothing in my lease says I can’t hang a hammock up.” And it's like one of those. Like, okay. They didn’t think to tell you “Please don’t put a hammock up.” But it was sort of understood that you wouldn’t be doing that, you know? And that’s kinda what we’re gonna talk about. We’re gonna talk about whether or not that’s good prosecutorial practice, if it’s bad prosecutorial practice. You know. What the implications for that are, etc et al, but we’re gonna do that in the context of analyzing the trial and the convictions. I want to get one tragedy porn thing out of the way because I don’t want to talk about it next time. There was a pre-trial motion to exclude evidence that these people may have had sex with the dogs, okay? Like, that’s a thing. That was litigated. That evidence didn’t go in at trial, so I don’t think we need to talk about it further. I don’t know if it’s true or not. But that was an allegation that was raised. It’s out there. It’s weird.

 

Nick: Yes. That is weird. There are other weirder things.

 

Jessa: Yeah. We’ll touch on some of those. I just don’t want to dwell on that because that’s like, salacious and not actually the legally relevant point.

 

Nick: No, it’s not. I mean. Right. If it were legally relevant in some way, then we would talk more about it. But the point is that it didn’t come in at trial.

 

Jessa: Right. So we will talk about that next time. But in the meantime, I am Jessa.

 

Nick: I am Nick.

 

Jessa: And this was Getting Off.

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