I may be going out of turn here, but I have one more thing that I wanted to engage you on before the Supreme Court starts handing down opinions this morning. As I suggested at the end of my last e-mail, I am troubled by the California decision to set aside the second-degree murder conviction of Majorie Knoller—whose Presa Canario dogs mauled beautiful young soccer coach Diane Whipple to death. Are you troubled by it? Or, alternatively, are you troubled by the extraordinary outpouring of condemnation of the judge who made the decision? I’m troubled by both. Knoller and her lawyer husband are truly reprehensible, and my gut would like to see her serve more than the four-year maximum penalty she will now get for manslaughter. But I’m just not sure the judge was wrong to rule out murder. I’m no expert on California criminal law, but the standard for murder—even of the second degree—is usually very high and requires intentional killing or something close to intentional—like shooting for the hell of it into a crowd—that is likely to cause death. And if the judge is even close to being right as a matter of law, his extraordinarily unpopular decision is an act of courage.
It made me think of To Kill a Mockingbird. Harper Lee’s novel makes defending unpopular criminal defendants a real easy choice, because Tom Robinson, the accused rapist, is not only innocent but “quiet, humble, and respectable” and even selfless in his efforts to help out the white woman who turns on him. He is despised in the (white) community, but, we readers know, unfairly so and for the worst of reasons. In the California case, by contrast, the community is surely right to despise the despicable Knoller and her equally repugnant husband. But if Mockingbird’s much-beloved message about adherence to legal rules means anything, it has to apply to the truly ugly and not just to fictional, sympathetic defendants who have Gregory Peck as their lawyer. Closer study may make the Knoller case an instance of why judicial independence is a good thing.