Harold Fish gets a retrial

[nazshooter]

As Glenn said, and I said well before him, there is more than enough reasonable doubt in this case if it goes to trial.

Reasonable doubt wasn't really the standard here. The law at the time (since corrected) was that Fish had to prove that this was self defense rather than the prosecutor having to prove that it wasn't. Given that the defendant was the only living witness it was going to be an uphill battle for sure.

 

[Tennessee Gentleman]

TG, you're mistaking what you think you would do with what the law required Fish to do.

I am discussing both. What you keep forgetting is that Fish was arrested prosecuted, and convicted of murder by a state court. It was done legally and under law. The trial court made some errors and Fish MAY get off but he may not. So it is about what I would have done AND what the law requires.

You weren't there. None of us were there.

Never said I was there. I am discussing the facts as presented just as you are. I think Fish made a mistake by drawing and firing the warning shot when he could have used other means to ward off those dogs. By his doing that act, he started down a path that led ultimately led to financial ruin and prison. My point in discussing it with others is to learn and not go down that same path myself if God forbid I find myself in that position. That is what I think the forum is for IMO.

 

[nazshooter]

That is what Fish said. The coroner said Kuenzli was standing still when shot and a wound to his arm may have been defensive.

Yes, but Fish's description of Kuenzli's actions was very similar to what some of the witnesses said that Kuenzli had done on other occasions. How could Fish possibly have made up a story that matched Kuenzli's reputation so well even though he didn't know Kuenzli's history at the time he gave his description of events? I'm thinking in particular of the whole punching at the air thing that Kuenzli had a history of doing.

 

[Tennessee Gentleman]

The law at the time (since corrected) was that Fish had to prove that this was self defense rather than the prosecutor having to prove that it wasn't.

It is what is known as an affirmative defense. However, reading a Massad Ayoob posting in another forum, jury psychology is still in play; to wit;

The wording of the law aside for a moment, it's also simple "Jury Psychology." If the jurors don't believe it was self-defense, they will not acquit. Therefore, they must be presented with clear and convincing proof that it WAS self-defense.

and I think he knows of which he speaks.

Another pertinent quote from a lawyer:

Some other facts are in order. A VAST majority of self defense shootings are not prosecuted at all. The prosecutor, after review of the evidence, either declines to file charges, or in places where he's required to, he takes the case to a grand jury with a recommendation to no-bill. Prosecutors offices are not flush with cash, and they are not in the business of pressing forward weak cases with legitimate claims of self defense in play because they lose those cases, and their bosses, and ultimately the elected officials and taxpayers get really tired of that stuff, and fast.

If charges are filed, and a case advances to a jury trial against you, you can rest assured that you will be presenting a defense, at tremendous expense, and that defense will not consist of a claim of "self defense" after which your attorney confidently rests his feet upon the defendants table and watches as the prosecutor wets himself because he doesn't have the goods on you. The presumption of justification if that claim is made is almost always a rebuttable presumption, and the rebuttal is also by preponderance of the evidence, not proof beyond a reasonable doubt. Because lets face it kids, the hurdle the prosecution has to go over is EXACTLY the same, whether you claim self defense or not, which is to prove beyond a reasonable doubt that you willfully or intentionally killed another person with criminal intent, and proving that by itself already rebuts your claim of self defense completely. Or else he argues you killed the person neglegently or accidentally, which you seal your own fate behind by claiming self defense, which is an intentional act, throwing neglegence and accident out the window with it.

Yes, but Fish's description of Kuenzli's actions was very similar to what some of the witnesses said that Kuenzli had done on other occasions.

In which cases Kuenzli never hurt anyone IIRC. Cuts both ways.

 

[RDak]

TG: Are you of the opinion that deadly force can only be used if someone is using a deadly weapon against you?

I'm having a very hard time following your logic on this one.

It seems that you are going out of your way to portray Fish as a murderer.

To me, with the facts as provided by the media, there is clearly reasonable doubt that he is a murderer.

He's alone minding his own business outside with no one around, then he is attacked by three dogs, he shoots a warning shot at the dogs, they run away, yet, he is then attacked by someone who turns out to be a known violent criminal, then he shoots to kill because he is afraid for his life.

Those facts don't rise to the level of reasonable doubt for you? You've got to be kidding?

 

[OuTcAsT]

If charges are filed, and a case advances to a jury trial against you, you can rest assured that you will be presenting a defense, at tremendous expense, and that defense will not consist of a claim of "self defense" after which your attorney confidently rests his feet upon the defendants table and watches as the prosecutor wets himself because he doesn't have the goods on you. The presumption of justification if that claim is made is almost always a rebuttable presumption, and the rebuttal is also by preponderance of the evidence, not proof beyond a reasonable doubt.

Um, Sorry, but I believe someone has their facts a bit askew. If charges are filed in a criminal court, the presumption is; innocent until proven guilty beyond a reasonable doubt.

Only a civil trial judge (or jury) has the ability to rule on a "preponderance of the evidence"

Because lets face it kids, the hurdle the prosecution has to go over is EXACTLY the same, whether you claim self defense or not, which is to prove beyond a reasonable doubt that you willfully or intentionally killed another person

I'm sorry, but doesn't an "affirmative defense" of self defense already admit that you have killed (or injured) someone, and the only thing to be proven is if it was justified under the law ? This guys' "circular" logic is astounding. Perhaps a bit too much Cutty?

 

[PT111]

He's alone minding his own business outside with no one around, then he is attacked by three dogs, he shoots a warning shot at the dogs, they run away, yet, he is then attacked by someone who turns out to be a known violent criminal, then he shoots to kill because he is afraid for his life.

I don't think that TG is trying to portray Mr. Fish as a murderer at all but rather saying that this is not a slam dunk acquittal as most are assuming. I did not find where the person he killed was a known violent criminal at all. Now I may have missed it but he was known to get very upset about his dogs and act the same way that Mr. Fish described but never caused any serious problems beyond scaring some people.

You are absolutely correct that Mr. Fish was minding his own business when two dogs ran up to him barking and growling. You are also correct that when he fired into the ground they turned and ran away. At that time no one had been physically harmed. The dog owner then started running and cursing just like he has been known to do at others. Was this relevent to the case? The appeals court says yes. This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

Mr. Fish felt threatened for his life at the time but did his fear rise to the level of taking another person's life. That is what the jury must decide. Mr. Fish gambled on betting the jury would not find him guilty of murder. I would be willing to bet that if the jury had been allowed to find him guilty of a lesser charge such as manslaughter that they would have instead of murder. He gambled and lost. Now he may have to do it all over. Like TG I don't think it is a sure thing that he will be turned loose by a second jury especially if they are allowed to consider lesser charges.

My free advice to Mr. Fish and it is worth exactly what he is going to pay me for it is to work out a deal with the DA for time served and see can't he put his life back together. He has already gambled one time and lost and a second time is no better.

 

[mavracer]

I don't think that TG is trying to portray Mr. Fish as a murderer at all but rather saying that this is not a slam dunk acquittal as most are assuming. I did not find where the person he killed was a known violent criminal at all. Now I may have missed it but he was known to get very upset about his dogs and act the same way that Mr. Fish described but never caused any serious problems beyond scaring some people.

trying to scare someone with a gun should get you a Darwin award.

This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

easy enough Mr Fish had no way to know that it would be hot air as a matter of fact you have no way of knowing it was going to be hot air.

 

[Tennessee Gentleman]

TG: Are you of the opinion that deadly force can only be used if someone is using a deadly weapon against you?

No, I have never said that. However, if you shoot an unarmed person absent a deadly weapon and cannot show that a disparity of force existed between you and your attacker you might well go to jail in many states.

It seems that you are going out of your way to portray Fish as a murderer.

A lawful jury already did that. But yes I have doubts as to his innocence.

is then attacked by someone who turns out to be a known violent criminal

I am not sure that is correct. Don't recall that Kuenzli had been arrested for any violent crimes but that doesn't matter. What matters is what happened at that incident. If I saw Ted Bundy walking around and went up and summarily shot him I could face murder charges also.

Those facts don't rise to the level of reasonable doubt for you? You've got to be kidding?

Not based on what I know about it no. I am not sure Fish did not unreasonably overreact to the situation that ended up causing a man's death. I might not convict him of murder but perhaps manslaughter if the laaw permitted it. I think many others are unsure as well.

 

[nazshooter]

The dog owner then started running and cursing just like he has been known to do at others. Was this relevent to the case? The appeals court says yes. This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

Not really. As I understand it the main issue for the jury was "was the victim really acting as aggressively as Fish claimed or was he exaggerating it to justify his actions?" If the jury had actually believed Fish's account 100% then this really was a good shoot under AZ law but they weren't allowed to hear testimony that Kuenzli really did sometimes act exactly that way and it did sound a bit too crazy to be real. What the State Supreme Court said was that next time they will hear that testimony. IMHO that's a huge difference.

The other thing that I haven't seen mentioned here is that in AZ you are allowed to use deadly force to defend against an assault. The state Supreme Court said that the jury weren't given adequate instructions in this matter even when they specifically asked what constituted an "attack". This is a big deal because many people think that an assault requires physical contact even though it doesn't.

 

[Al Norris]

nazshooter, I think you mean the Arizona Court of Appeals. Not the State Supreme Court.

 

[PT111]

This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

easy enough Mr Fish had no way to know that it would be hot air as a matter of fact you have no way of knowing it was going to be hot air.

No one knows what it was going to be. I am only saying what his actions have been in the past and when it is said that he always behaved that way but never hurt anyone it can be damaging as much as helpful.

As nazshooter points out that the main advantage of the testimony is to help confirm the story of Mr. Fish and that he was telling the truth. Just like the barking dog that comes at you and the owner tells you "He won't bite". He may not have ever bitten anyone but there is the possibility of a first time. You shoot the dog and stand before a jury to tell them that the dog was about to bite you. The owner says yes he was barking like he always does but had never bitten anyone. That is going to put doubt in the mind of the jurors as did you overreact.

 

[nazshooter]

nazshooter, I think you mean the Arizona Court of Appeals. Not the State Supreme Court.

You're right, thanks.

 

[mavracer]

As nazshooter points out that the main advantage of the testimony is to help confirm the story of Mr. Fish and that he was telling the truth. Just like the barking dog that comes at you and the owner tells you "He won't bite". He may not have ever bitten anyone but there is the possibility of a first time. You shoot the dog and stand before a jury to tell them that the dog was about to bite you. The owner says yes he was barking like he always does but had never bitten anyone. That is going to put doubt in the mind of the jurors as did you overreact.

once again nobody told Mr. Fish that Kuenzli would just run up and flail his arms get angry and just make you think he was going to kill you and then stop and the first jury was not allowed to hear all of Mr. Kuenzli behavior.
I guess my point is it shouldn't be damaging to Mr Fish.

 

[Tennessee Gentleman]

I guess my point is it shouldn't be damaging to Mr Fish.

PT 111 makes a great point. It depends on how the jury takes it. Ultimately they will decide it. If they look at the incidents of Kuenzli and find them bizarre but not dangerous it might go bad for Fish. Also, when Kuenzli had those previous outbursts, nobody shot him, called the police or tried to defend themselves. See how it cuts both ways? The jury may say; "Well Kuenzli was strange but he shouldn't have died for that" and no matter what anyone on TFL says that will be the way it goes down for Mr. Fish.

Um, Sorry, but I believe someone has their facts a bit askew. If charges are filed in a criminal court, the presumption is; innocent until proven guilty beyond a reasonable doubt.

That is not what he is saying. Read again and you will see what he is saying is that you cannot just claim self-defense and sit back and make the prosecutor prove it was not. And as Mas Ayoob said, you'll have to prove it to the jury that you acted reasonably or you will go down. Fish may have a problem doing that.

I'm sorry, but doesn't an "affirmative defense" of self defense already admit that you have killed (or injured) someone,

You left out a key phrase and that was criminal intent. Yes an affirmative defense stipulates that you did the killing and what Mas says is regardless of how the states handle burden of proof you will have to proof and convince the jury you acted reasonably. What he is saying is the claim of self defense does not make it easier or harder for the prosecution to win.

 

[Nnobby45]

Virtually every action taken in that entire incident, by both parties, was wrong. Problem being, when you use a gun, "wrong" becomes "killer".

I suspect that if Peezakiller ever supported a citizen defending his life, I'd likely spit my Red Bull all over my new Dell Monitor.

Arizona passed a law that would have made Mr. Fish's actions lawful if it had been in affect at the time.

Correct me if I'm wrong, but wasn't the law passed before he went to trial?

I've read Ayoobs account, and it's obvious that Mr. Fish was convicted largely on an incompetent attorney's inability or unwillingness to simply refute the prosecuters contention that the use of a powerful 10mm was over- kill--while painting Mr. Fish as something he was not-- a violent individual with a killer gun. Not a peep out of his bozo attorney in rebuttle.

Don't think he'll be convicted again with competent council.

Harold Fish:
http://backwoodshome.com/blogs/MassadAyoob/2009/07/

 

[mavracer]

Also, when Kuenzli had those previous outbursts, nobody shot him, called the police or tried to defend themselves.

actually there were many police reports and Mr. Kuenzli had lot's of trouble with the law.these were the facts that were suppressed in the first trial.now your trying to suppress them here. Judge Moran is that you

 

[Tennessee Gentleman]

Arizona passed a law that would have made Mr. Fish's actions lawful if it had been in affect at the time.

Actually that is not correct. The law just shifted the burden of prove to the state when some uses the affirmative defense of self defense. Based on what I read I doubt it would have made much difference based on what the jurors said after the trial. Same for the 10 MM and hollow point bullets. The jurors felt Fish overreacted when he killed Kuenzli and convicted him as a result.

 

[Tennessee Gentleman]

actually there were many police reports and Mr. Kuenzli had lot's of trouble with the law

Other than an issue with his girlfriend and a threatened suicide what other police reports? Maybe you should check out the facts more?

BTW 10 people took the stand and testified about Kuenzli having a hot temper and being aggressive and violent and the jury still convicted him. Not everything was witheld from the jury.

Statement from Juror:

We wondered if the jurors had known more about Grant Kuenzli’s past, would it have made a difference to their verdict?

Elliot: We still had the evidence of this incident, at this scene, at this moment. And all those things, while damaging to Mr. Kuenzli’s character, have nothing to do with what happened on May 11th, 2004 out in the woods between Mr. Kuenzli and Mr. Fish, and the evidence that was presented to us.

 

[mavracer]

Other than an issue with his girlfriend and a threatened suicide what other police reports? Maybe you should check out the facts more?

Steve Corich is the director of public safety at Mesa Community College. One morning in 2003, a security officer found Kuenzli walking his dog on campus without a leash. When the officer confronted him, Kuenzli became agitated.

Steve Corich, director of public safety at Mesa Community College: He was loud. His fists were clenched. All of his body language essentially conveyed that he was extremely angry. And it took quite a while to calm him down.

In his 26-year career, Corich says Grant Kuenzli stands out.

Corich: He had one of the hottest and quickest boiling points of any of the people I’ve ever dealt with.

Clayton Hamblen, justice of the peace: His look was one of “I would like to rip your throat out.”

Clayton Hamblen has been a justice of the peace in West Mesa for 15 years. One day, Grant Kuenzli showed up for a court hearing with his dog, when Hamblen suggested he leave the dog outside. He says the dog owner became aggressive.

Hamblen: He began to clench his fists. His eyes got a look that was just almost downright scary.

Hamblen says Kuenzli seemed more concerned for the well being of his dog than people.

Hamblen: I said “The man is either going to kill somebody or somebody is going to kill him.” And that was my feeling… that was just a gut reaction.

I would assume these are both reported since they are reports of confrontations with officers.

Not everything was witheld from the jury.

except enough for the appeals court to throw out the verdict and demand a retrial.