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Homophobia for the defense: the dog-mauling murder trial shows that unsavory legal tactics die hard. (Court).

It's still an all-too-common courtroom maneuver: A zealous attorney with an unpopular client charged in the death of a gay person argues that the defendant is the innocent victim of sinister gay motives. What should be on trial, the defense attorney suggests, is not the defendant but the way gay people behave.

What made the tactic unusual in this circumstance was the case itself. Rather than a young male claiming that "gay panic" forced him to lash out and kill a would-be sexual partner (as in the infamous Jenny Jones case), here the strategy was applied for a middle-aged woman whose presa canario dogs killed a lesbian neighbor in an upscale San Francisco apartment building. Moreover, the allegation came from a defense attorney with a reputation for supporting left-wing causes.

During her final arguments in March's trial of Marjorie Knoller for the death last year of Diane Whipple, Knoller's attorney Nedra Ruiz burst out with an allegation that caught many legal observers by surprise. Ruiz suggested that San Francisco assistant district attorney Jim Hammer was deliberately withholding evidence to pander to gays because of their perceived political clout. (The trial was held in Los Angeles due to pretrial publicity in San Francisco.)

"What is the prosecution's excuse for keeping this evidence from you?" Ruiz asked the jury. "Maybe he wants to curry favor with the homosexual and gay folks who were picketing 2398 Pacific [the apartment building in which Whipple lived with her partner, Sharon Smith] and demanding justice for Diane Whipple. Maybe that's his motivation for hiding this from you."

The "he" in this case was Hammer, who is openly gay. "what was personally interesting was, she pointed at me when she did it," Hammer recalls. "You prepare for a lot of things in trial. I did not expect that one."

To many in the courtroom, Ruiz's strategy came close to making Hammer the issue. "I swear to God that I thought she would out Jim Hammer," says Kate Kendell, executive director of the National Center for Lesbian Rights, a San Francisco-based legal group. "I was waiting for the sentence that the prosecutor was hiding this evidence on behalf of the gay cabal because he himself is gay. I fully expected her to say it, and, frankly, I think she almost did."

In fact, the charge became a topic for network television, with Hammer and fellow prosecutor Kimberly Guilfoyle Newsom being quizzed about it by Matt Lauer on NBC's Today show. Hammer says he was unfazed by the discussion about his orientation. "I had been out a couple of years," he says. Still, he was upset with Ruiz's allegation that gay politics--and perhaps his own personal interest--played a role in the prosecution.

"That was part of the strategy--to make me seem less than objective," he says. "We went from a murder case to lesbian picketers. All of a sudden it became the lesbian cabal."

Kendell adds, "It's just unconscionable that an attorney who portrays herself as progressive would play the lavender card and repeatedly try to appeal to whatever antigay prejudice the jurors might have harbored. To the extent that she thought she was pulling the trigger on salacious and inflammatory information helpful to Marjorie Knoller, the gunpowder is all over her face. It couldn't have backfired more pathetically."

According to Michael Cardoza, who along with Kendell is representing Smith in a precedent-setting wrongful-death suit against Knoller and Noel, Ruiz couldn't have been further from the truth that day. "There wasn't a gay conspiracy," he says. "I say, `Baloney to that.' It was a figment of Nedra's imagination. There wasn't a gay community standing behind this case exerting pressure. I should know; I was in the middle of it all. Good people, whatever their preference, were offended by this."

Indeed, as a defense strategy, Ruiz's effort clearly did not work. Knoller was convicted on all counts, including involuntary manslaughter and second-degree murder, only the third time in the United States that a dog owner has been found guilty of murder in a mauling case. (Knoller replaced Ruiz as her defense attorney on April 2 in advance of Knoller's appeal of the verdict.)

Knoller's husband, Robert Noel, whose charges included involuntary manslaughter, was tried at the same time and was convicted. The demeanor of his attorney, Bruce Hotchkiss, paled next to the energetic courtroom performance of Ruiz.

However, Hotchkiss incurred the wrath of gay activists in 1999 for using the "gay panic" defense in the case of Steven Nary, a Navy airman accused of choking and bludgeoning to death Juan Pifarre, a 54-year-old Latino activist and publisher in San Francisco, when Nary was 18 years old.

"Steven Nary was protecting himself and resisting sodomy," Hotchkiss told the court at the time. "Juan Pifarre made a calculated decision to have sex with a teenager that evening." Nary was convicted of Pifarre's murder.

No matter how far-fetched Ruiz's accusation was, the charge certainly carried a sting in the courtroom. Smith, who was there at the time, says she saw the strategy as a last-gasp effort in a falling defense.

"I thought it was an obvious, desperate attempt to try to find something to give the jury a reason not to convict, hoping that there was somebody who had that closed-minded thinking," she says. Hammer agrees. "I have to assume it was a strategy to appeal to someone homophobic on the jury," he says.

While jurors ultimately rejected the charge, attorneys did not know the panel's attitude toward gays and lesbians in advance. A lengthy survey given to potential jurors at the outset of the trial focused on their experiences with dogs and asked no questions about their attitudes toward gay men and lesbians. "I didn't want to make it a gay case," Hammer says. "It's about a woman getting killed."

Hammer adds that the outcome of the case shows that the "gay panic" defense Ruiz used no longer carries weight with jurors. "Appeals like that don't work anymore," he says. "The jury didn't bat an eye."

Still, Kendell says, the fact that Ruiz would raise the issue at all gives her pause. "I couldn't help but ruminate on how readily available appeals to homophobia are, even in circumstances when you can't imagine that such an appeal could be effective," she says. "It's as if it is always sitting there, easily within reach, and in some cases or circumstances it may be effective, which is why Ruiz would use it at all."

Gallagher is coauthor of Perfect Enemies: The Religious Right, the Gay Movement, and the Politics of the 1990s.
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Title Annotation:attorney in San Francisco case suggests evidence withheld to pander to gays
Author:Gallagher, John
Publication:The Advocate (The national gay & lesbian newsmagazine)
Geographic Code:1U9CA
Date:May 14, 2002
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