Harold Fish Gets New Trial Finally!

[HarryB]

http://www.azcentral.com/news/articles/2009/06/30/20090630selfdefense30-ON.html

Retrial ordered in fatal shooting of hiker
by Michael Kiefer - Jun. 30, 2009 03:08 PM
The Arizona Republic
The Arizona Court of Appeals on Tuesday threw out a murder conviction of a hiker who claimed self-defense when he shot a man to death on a hiking trail north of Payson in May 2004.

Harold Fish, 62, was convicted of second-degree murder in June 2006 for shooting Grant Kuenzli, 43, after Kuenzli ran at him waving his arms because Fish had fired a warning shot into the ground to scare away Kuenzli's aggressive dogs. He was sentenced to 10 years in prison.

But the Court of Appeals sent the case back to Coconino Court Superior Court to be retried because the trial court judge had not given adequate instruction on what constituted self defense. And the panel of appellate judges scolded Coconino County Superior Court Judge Mark Moran for not answering a jury request to define the word "attack." The panel remarked that the jury may not have understood that someone can commit aggravated assault on another person without actually touching him.


Fish's contention was that Kuenzli's three dogs ran at him and put him in fear for his safety. He fired a shot into the ground in front of the dogs and scared them away. But then Kuenzli ran at him shouting and waving his arms and refused to stop.

The panel also noted that the lower court had "sanitized" evidence of prior incidents in which Kuenzli had become enraged and had frightened people during encounters with the dogs. Many times, in criminal trials, such "prior bad acts" are excluded. But in this case, the appellate judges felt it was relevant, especially since there were no witnesses to the event.

The appeals court also felt that Moran could have allowed the defense to classify dogs as potentially "dangerous instruments," furthering Fish's self-defense claims.

Two weeks after Fish's trial began, the Arizona State Legislature rewrote the state's self-defense statutes to force prosecutors to better disprove self-defense claims. And although the Fish case was a catalyst for the law, it could not be applied retroactively. That change in the law, however, coupled with the strong wording of the ruling may factor into whether the Coconino County Attorney decides to retry the case or whether Fish goes free.

----------------------------------------

also seen here:

http://thehighroad.org/showthread.php?t=205833&highlight=harold+fish

 

[Double Naught Spy]

Funny how the conviction is thrown out, but he remains in prison. He gets a new trial, but the results of the first trial appear to stand until which time the new trial produces new results. Maybe the judge will let him out on appeal?

 

[KyJim]

I recall this when it came out. It is of the only cases where, according to published reports, the prosecutor actually used the caliber of gun against the defendant. He used a 10 mm and the prosecutor made a big deal out of using this extra powerful caliber.

I am normally very much on the side of the police/prosecutor but it seemed to me an injustice was done at the trial. I am glad he will get another chance.

 

[TexasRifleman]

Maybe the judge will let him out on appeal?

Hopefully the prosecutor will just let the whole thing go and end it that way rather than spend all that taxpayer money on another trial.

I remember when this all came about and the evidence was so overwhelming for self defense it seemed to me, but the jury got none of it.

I don't think there is a chance they would get a conviction the second time.


But, this is the same idiot DA that argued the 10mm Fish was carrying was "overpowered" and built only to murder someone.

 

[jfh]

Thanks for the update.

Hallelujia! This was one out-of-state travesty I followed closely....

Jim H.

 

[Yo Mama]

Alot has changed in AZ since 2006. I hope he is freed, and I hope after he sues the pants off them.

 

[Double Naught Spy]

I recall this when it came out. It is of the only cases where, according to published reports, the prosecutor actually used the caliber of gun against the defendant. He used a 10 mm and the prosecutor made a big deal out of using this extra powerful caliber.

You want maybe for prosecutors to not use all the tools in their chest in order to get a conviction? Of course he used caliber. It comes up in most every shooting. He also used the fact that Fish used hollowpoints, shot an unarmed man, shot him multiple times, that his testimony didn't jive with other witness information, etc. etc. etc.

Fish's lawyer could have done something about the issues of gun, caliber, ammo, etc., but he didn't. Don't blame the prosecution on using perfectly legit. information that is in evidence in order to make his case. Find fault with Fish's lawyer for not fighting it.

I am normally very much on the side of the police/prosecutor but it seemed to me an injustice was done at the trial. I am glad he will get another chance.

Not because of the caliber issue.

 

[Frank Ettin]

This is a great result. I thought that Harold Fish got a raw deal.

 

[carebear]

You want maybe for prosecutors to not use all the tools in their chest in order to get a conviction?

Double Naught,

I disagree with that and actually agree with AG Holder on something.

When discussing the "get a conviction" priorities of the Federal prosecutors he inherited (which priorities led to cutting corners and got them verbally spanked by Judge Sullivan in the case of Sen. Stevens) he reiterated that their job is to first ensure justice is done, not improve their win rates.

I do in fact expect, even in our adversarial system, prosecutors to seek to do justice first; not pull an extraneous screwdriver out of their tool chest to influence the jury when the facts of the case only involve nails.

"Better 100 guilty men go free..." and all that.

 

[Double Naught Spy]

carebear,
Ah! See, it is a matter of perspective. The prosecution, it can be argued, is trying to get justice done. What you refer to as extraneous would be what another would refer to as being thorough. It all depends on which side of the courtroom you are on.

Caliber was not an extraneous issue. 10mm was what was used to commit the homicide. You just don't seem to like the fact that the prosecution was able to use what was in evidence against Fish. Like I said, don't blame the prosecution. Fish's lawyer didn't do a thing about it. Extraneous would be discussing what firearms and ammo Fish had back a home, not what caliber or ammo that was used for the homicide. Like I said, don't blame the prosecution. Fish's lawyer didn't do a thing about it.

 

[Blakenzy]

The panel remarked that the jury may not have understood that someone can commit aggravated assault on another person without actually touching him.

How does that work?

 

[Deanimator]

How does that work?

Assault is the imminent, credible threat of violence.

Battery is its physical consummation.

If I swing a bat at your head, it's assault.

If I connect, it's battery.

 

[TexasRifleman]

How does that work?

The argument in this case was that failure to control the dogs was the trigger for aggravated assault if I remember right.




But, regardless of how it plays out, this is one more of the thousands of reasons to not talk to the police without an attorney.

 

[femoralis]

I'm glad he's getting a new trial. The conviction seemed extremely wrong to me.

 

[v65magnafan]

I'm new to this case, so this question might be totally off.

But, I'm wondering. One of the things a CCW under attack must consider is the gravity of the threat. Apparently, the vicious dogs left the scene. Waving hands might not constitute an immediate threat to life.

Did Mr. Fish use verbal commands before shooting? I know that I might sound like a snarky guy with hindsight, but I'm just wondering. It helps me to learn about scenarios I might find myself in one day.

 

[rbernie]

http://www.msnbc.msn.com/id/15199221

Fish: I looked out and I could see the top of a car.

At the head of the trail, he says he saw a man camped by his car with two dogs.

Fish: His head picks up, the dogs alert. And I just raised my hand, you know, just to let him know that I’m just a hiker going through here.

Larson: So you wave at him?

Fish: Yeah. I raised my hand. I just you know, like, “I’m here. I’m a guy—I’m friendly.” So I get to about right in here, and when I look up, here come these dogs running very quickly, fangs showing, barking, running right at me.

Larson: Just these 30 yards, right here?

Fish: Yeah, just coming right here and at that point I’m yelling at him, “Hey control your dogs!”

But, Fish says, the man didn’t try to stop the dogs. Fish always carries a pistol with him when he hikes, he says to protect him from wild animals. He says he pulled out a 10 mm gun he had with him that day—and fired a warning shot into the ground.

Fish: One dog went off to the left and stopped right over there by the tree there. The other one went off into the brush there.

The dogs were out of the way, but Fish says the man began charging down the hill at full speed.

Fish: I yell at him, “I didn’t shoot your dogs” or “I didn’t hurt your dogs.” And he’s yelling back at me as he’s coming, he says, in a kind of strange voice “I’m going to hurt you. I’m going to kill you,” and he’s swinging, kind of punching at me. I’m yelling at him. “I didn’t shoot your dogs. No. Don’t. Get back. Leave me alone. No!”

Fish says he feared for his life.

Fish: One minute I’m just walking through the woods, oblivious to him or anything else. And the next minute I’ve got two dogs barking and snarling, trying to bite me, and an angry man following right after them, yelling that he’s going to get me, going to kill me, swinging his fists.

Larson: And you’re convinced this guy actually was going to kill you?

Fish: Yeah.

Fish fired three shots. The man fell to the ground.

Larson: When he falls, does he say anything?

Fish: No. Never did.

Larson: Do you say anything?

Fish: Yes. I—I—for the first five seconds or so, I was angry. But obviously, he was hurt. So after about five seconds of losing my cool and then getting angry at him, you know, then I tried to do what I could to help him.

Fish says he put his backpack under the man’s head, and covered him with a blanket, as seen in the sheriff’s department video.

 

[ezypikns]

Interesting.

I read some of the original posts here (on "The High Road") from 2006. Many posters from that time seemed to feel that the shooter was in the wrong and got pretty much what he deserved.

Faced with the same situation, we all hope we would make the wisest choice. I did notice that the shooter's original act was to fire a "warning" shot at the dog(s).

Maybe one lesson we should take from this (by no means the most important) is that when we make the choice to use deadly force, we follow through completely.

Firing a "warning" shot of any kind just demonstrates that you're not sure that your life is in fact in danger or even that the danger could be avoided.

And maybe the evidence of a dead dog at the scene of this shooting might have given more credence that the shooter was in fear of injury or of his life.

 

[highorder]

He also used the fact that Fish used hollowpoints, shot an unarmed man, shot him multiple times,

My memory is fuzzy; didn't the deceased have a foot long screwdriver in his back pocket?

 

[Blakenzy]

Well, Fish's position doesn't look very convincing until you read of Kuenzli's past deeds (kidnapping, rape, assault and a general attitude that legitimately frightens everyone around him), add the fact that he had a screwdriver in his pocket.

Read this: http://newsgroups.derkeiler.com/pdf/Archive/Alt/alt.true-crime/2007-03/msg00800.pdf

Basically it says that it's true that Fish did not "know" of the above facts at the time of the shooting, but it is not unreasonable to believe that he could have "perceived" it through Kuenzli's demeanor, body language and actions. A man who constantly misbehaves will create a more credible threat than a man who normally behaves.

Also, because no impartial witnesses were present, knowing of Kuenzli's past behavior creates a baseline from which jurors can begin to construct a better picture of just how threatening Kuenzli might have appeared to Fish at that moment. If a judge may have fear instilled in him by Kuenzli in his own court room, imagine how scary would it have been for someone all alone in the middle of nowhere to have this man come at him threatening death.

 

[TexasRifleman]

My memory is fuzzy; didn't the deceased have a foot long screwdriver in his back pocket?

That is how I remember it but the jury didn't see that since it was argued that the screwdriver, being hidden, could not have been a factor in Fish deciding to use deadly force since Fish didn't know the guy was armed.

The piece of this that I remember really bothered me when it happened, and the reason I think this whole deal was a big mistake, was the argument that dogs could not be considered to be "dangerous instruments".

The argument as I remember it, but the jury never heard, was basically:

"If you fail to control dogs that attack someone, and that person shoots or uses force against your dogs, you do not get to claim that you attacked the shooter in defense of your dogs since your dogs can clearly be dangerous instruments and were the initiators of the incident. You may simply have to let your dogs get shot since failing to control them is not the fault of the guy they attacked"

Or something similar.

 

[Double Naught Spy]

My memory is fuzzy; didn't the deceased have a foot long screwdriver in his back pocket?

That is how I remember it but the jury didn't see that since it was argued that the screwdriver, being hidden, could not have been a factor in Fish deciding to use deadly force since Fish didn't know the guy was armed.

Right. Fish never reported seeing a weapon of any sort or that the shootee threatened to stab him with said unseen screwdriver.

 

[GregGry]

Well, Fish's position doesn't look very convincing until you read of Kuenzli's past deeds (kidnapping, rape, assault and a general attitude that legitimately frightens everyone around him), add the fact that he had a screwdriver in his pocket.

All of which can't be admitted to evidence since its not relevant to what happened. Fish didn't know of the screw driver, therefore it couldn't have been part of his threat assessment. The guy he shot could have had 3 knives and 2 guns on him, and none of it could have come into evidence unless fish had reason to believe (based on evidence such as seeing the weapons) the man was armed. This is why I constantly tell people on THR that you have to base your decision on pulling the trigger only on evidence up until you pull the trigger, and by evidence I mean hard concrete evidence (such as seeing a gun) and not on possibilities (such as all criminals are likely armed).

Like it or not there are many things in that case that are problems when it comes to most states use of deadly force. He shot "a warning shot" to scare the dogs, which apparently worked since the dogs ran off. The man comes after Fish supposedly yelling I am going to kill you. Well was this man actually capable of causing Fish death or great bodily harm? (again the screw driver has no role since fish didn't base his THREAT ASSESSMENT and decision to shoot on it) To combat a person with their fists with a gun, means that you better have disparity of force on your side, AKA the other guy is much bigger, stronger, etc.

The biggest mistake he made was firing a "warning shot". Its not unreasonable to think that the man he later shot and killed could have thought fish shot at him, or that fish killed one of his dogs. Regardless of the threats the person made to fish, if he wasn't capable of making good on the threats (AKA was larger, stronger then fish and/or had a weapon) then fish (in most states) would have likely been found guilty.

Like it or not there are two standards when it comes to deadly force, objective and subjective. You can't believe anything you want (In Fish's case he believed he was in danger of death or great bodily harm) but the evidence convinced the jury otherwise. Thats why nobody on this site should base their decision to pull the trigger soley on a fear for their own life or the life of others, without actual evidence (such as a gun or disparity of force factors) that you base your fear on. If the only thing you have on your side is the fact you "were afraid for your life", and you don't really have any evidence that others are going to believe when it comes to if you actually were at risk of death or great bodily harm, you will be found guilty.

 

[TexasRifleman]

All of which can't be admitted to evidence since its not relevant to what happened.

Except the appeals court disagrees with you, which is why there is a new trial.

The argument is that normally you would be correct but the Prosecution opened the door to this in the original trial so the defense should have been allowed to use that door once it was opened. They just could not be the ones to bring it up first.

 

[v65magnafan]

Thanks, rbernie, for the factual update.

The main problem is that the legal system (note that I'm not calling it the "justice" system) has years and years and unlimited funds to minutely analyze five seconds of time that changes lives.

The issue is, I think, did Mr. Fish act as a reasonable person with CCW training?

Also, his actions after the event were likely as critical to his defense as the the event itself.

What my CCW instructor emphasized is "Do not talk to the police without your lawyer present." Period. It is your right. Be polite, but exercise your constitutional right.

Also, I am pretty sure that I would be in enough shock to probably be physically ill after a shooting. If Mr. Fish was totally coherent and reasonable to witnesses, this might present a problem. I'm referring to the jury's perception of this.

I carry the business card of an expert firearms lawyer in my wallet. I wonder if a prosecutor could twist this fact.

 

[GregGry]

Except the appeals court disagrees with you, which is why there is a new trial.

The argument is that normally you would be correct but the Prosecution opened the door to this in the original trial so the defense should have been allowed to do the same.

If the prosecution brought up something to do with the dead persons character being stellar, and fish's lawyer didn't counter that with evidence then thats one thing. Hardly worth a retrial on its own due to the fact he was convicted based on what he did (and claimed the dead person did). Even if the persons past history was let in, what does it prove? Nothing when it comes to what happened that day.

The panel also noted that the lower court had "sanitized" evidence of prior incidents in which Kuenzli had become enraged and had frightened people during encounters with the dogs. Many times, in criminal trials, such "prior bad acts" are excluded. But in this case, the appellate judges felt it was relevant, especially since there were no witnesses to the event.

Again as stated here the evidence that could be let in is that the man had done similar things (that Fish delt with) before. This isn't very good evidence for many reasons. For one fish didn't know of any past events with that man, so it had no relevance to his decision to using deadly force. If Fish had known man X has dogs that has killed people, and he saw man X release his dogs, thats one thing, however thats not the case here. Second, how does it prove that fish was justified in using deadly force? He shot a unarmed man, he already stated the dogs ran off. All laws regarding the use of deadly force against a unarmed person (disparity of force) apply. The dogs were the threat at the start, both of which were no longer a threat after firing a shot, they are out of the picture. Then he shot the owner of the dogs because he was "afraid for his life". The dogs have little to nothing to do with the case since he did not state the man yelled for the dogs to kill him (fish), and again they were out of the picture right away. The case is down to if he could have used deadly force on the man he killed. Given the facts of the case I find it questionable that he could have. You can't kill someone based on statements alone, and you can't kill a unarmed man without justifying disparity of force.


The screw driver shouldn't be in evidence, and if it does it might as well be considered a precident that if the police find any potential weapon on someone another person killed (regardless of if they knew about it or not) they aren't guilty. The fact is you have to base your choice to use deadly force on the facts leading up to you pulling the trigger. Shooting someone on unkown posibilities should put you in prison.



Considering the cold hard facts I have read from the case, he is absolutely on a slippery slope and he case could have gone either way to begin with.