Harold Fish Gets New Trial in Arizona
This is great news for Arizona, the Fish family and the United States of America. If anyone doubts that dogs and insanity are weapons worthy of deadly force, they are not reading the laws closely enough or they have not been given all the information (just like the original jury in Harold Fish’s case!) Go to Fish’s defense site for more information.
By LARRY HENDRICKS
Assistant City Editor
Wednesday, July 01, 2009
The state Court of Appeals has granted a new trial to a Valley man convicted of second-degree murder in the May 2004 shooting death of a man on a national forest trail in Coconino County.
Harold Fish gets another chance
The court decided that the jury in the trial of Harold A. Fish, 62, was not allowed to hear evidence that might have supported his claim of self defense when he shot and killed Grant Kuenzli. The court concluded that a jury should have heard evidence that Kuenzli acted violently when he was confronted about his dogs.
The court also concluded that the jury should have been instructed more clearly on definitions of self- defense and crimes considered “unlawful physical force” to determine if Kuenzli had been committing a crime when he approached Fish on the trail.
Lee Phillips, Fish’s Flagstaff- based appellate attorney, said, “We’re thrilled that after several years in prison that Hal Fish might finally be getting the justice he deserved.”
Fish’s wife Debbie said, “I’m not really surprised. We had very valid reasons for making the appeal.”
She continued: “We’re ecstatic we finally got the answer back and hopeful that my husband will be home soon pending the new trial. It’s been a long, hard road.”
Phillips added that Fish’s release won’t be immediate because the state will likely file an appeal to the Arizona Supreme Court.
Michael Lessler, chief deputy county attorney who prosecuted the case, said that the Coconino County Attorney’s Office and the Attorney General’s Office will review the 110 pages of opinions issued by the appellate court.
“But at this point we have made no final decisions about how we will be proceeding,” Lessler added.
Fish maintained at trial that two dogs in the care of Grant Kuenzli care rushed at him as he exited a trail off Highway 87 near Pine and Strawberry. To protect himself, Fish said he pulled a 10 mm handgun and fired a warning shot to keep the dogs away. He also said Kuenzli then rushed at him, threatening death or harm.
He shot Kuenzli three times in the chest. Two of the wounds were fatal. Kuenzli was unarmed and Fish was not injured in the incident.
The prosecution argued that Fish overreacted and took a man’s life when other options were available. Self defense was not justified, it contended, and a forensic report suggested Kuenzli was in a defensive posture when the bullets struck him.
The jury agreed and convicted Fish of second-degree murder in June 2006. Judge Mark Moran sentenced Fish to 10 years in prison
In the appellate court’s opinion, the judges ruled that Fish should have been able to present evidence to establish his credibility because the prosecution had said Kuenzli was “merely trying to retrieve his dogs,” at the time of the shooting.
Fish had told investigators the dogs had charged him, so he should have been able to present evidence of specific acts to which Kuenzli would react violently when confronted about his dogs, according to the opinion.
Additionally, the court ruled that jurors were not given clarity on what constituted “unlawful physical force.”
Fish had wanted to produce instructions to the jury that included crimes in the category of unlawful physical force, which includes endangerment, threatening or intimidating and aggravated assault.
Judge Moran did not allow the instructions to the jury.
By excluding such instructions, the jury may have been able to conclude that what Kuenzli did when he came at Fish did not constitute unlawful physical conduct, when, in actuality, it could have.
Particularly concerning to the court was that the jury had actually requested a definition of “attack” during their deliberations. The jury was instructed that all the direction they needed was in the jury instructions they had been given.
“Whether the question referred to the dogs or the victim’s alleged attack on the Defendant, this uncertainty underscores the need for the jury to have understood that the Victim may have unlawfully attacked defendant without physically touching him.”
The court continued: “Because there was evidence supporting Defendant’s self-defense claim and because the flawed jury instruction allowed the jury to disregard this evidence, we cannot say that the state met its burden to show harmless error,” wrote the court.
While Fish is undergoing the appellate process, the Legislature is working to pass a self- defense law that would apply retroactively in Fish’s case and give him a new trial.
Just days after Fish’s trial started, the Legislature passed a self-defense law that changed the burden to prove self-defense from the defendant to the prosecution.
Moran, the judge hearing the case, ruled that the law did not apply to Fish because the law had been created after Fish had been charged under the old law.
Last week, the state Senate voted to overturn Fish’s conviction by stating that the new law was specifically meant to apply to cases like Fish. The House of Representatives has yet to vote on the bill.
The Legislature has approved similar bills in the past, but Gov. Janet Napolitano vetoed those efforts.
01 Jul 2009 09:20 am morgan 0 comments
