Harold Fish gets a retrial

[RDak]

TG and PT111:

The jury was not allowed to consider prior acts of violence in determining who was the initial agressor. Kuenzli was clearly a violent person and had the jury been allowed to consider this fact to determine Fish's state of mind, as to what was transpiring before his eyes, they could very well have found Kuenzli the first aggressor.

The appellate court stated the victim's prior agressive behavior was "highly sanitized" and provided the jury with none of the information indicating "how violent or agressive the victim had become over the confrontation with his dogs...... that he was irrationally agressive and violent and extremely frightening.....that the victim, when upset, would get a 'wild look' and 'flail his arms in an agressive manner'....The jury only heard from witnesses that they thought the victim had a reputation that he was violent or agressive........and (only heard) in several instances undescribed incidents had occurred with the victim's dogs".

The appellate court went on to state, in so many words, that denying specific and detailed prior violent behavior of Kuenzli, denied Fish the chance to present "crucial" corroborating evidence that he was confronted by a "wild eyed man, flailing his arms and fists and threatening to hurt Fish". This was "crucial to the justification defense" according to the appellate court.

Then, the appellate court stated, the lower court erred when not explaining that appropriate self-defense actions include perceived threats of actual physical attack, as well as, attempted use of unlawful physical force.

In other words, the appellate court concluded it is ok to use deadly force to prevent a forcible felony. (The jury was not told it is ok to use deadly force if a violent felonious act is about to be committed, [i.e., it's only ok when it is ACTUALLY being committed, or something to that effect].)

The appellate court went on to state Fish's testimony to the police, witnesses and the grand jury were reasonably consistent and footprints showed Kuenzli was moving towards Fish and Fish shot Kuenzli when he was very close.

All that evidence, taken as a whole, along with the serious evidence withheld from the jury, coupled with totally deficient jury instructions, resulted in the appellate court concluding the jury should have been instructed to accept the prevention of violent attack as a justifiable defense.

The appellate court stated an individual can make an aggravated assault without ever physically contacting his or her intended victim. The jury was never told Fish could use deadly force to prevent the aggravated assault before he was physically hurt or had endured actual physical contact.

Finally, the lower court even erred when it failed to instruct the jury that attacking dogs can be considered dangerous weapons. (I'm beginning to think the lower court judge is a loon.)

The appellate court stated a dog can be considered a dangerous instrument (well duh!!) and, the owner doesn't have to order his dog to attack to avoid responsibility or suspicion. (Well, once again, duh!!)

Due to these extremely serious mistakes made by the lower court judge, the appellate court reversed the conviction and sentence.

TG and PT111: Now, just for entertainment purposes, with what the appellate court basically concluded from the above paragraphs, do you guys still think there is no reasonable doubt that Fish is a murderer?

I mean, "come on now"!?

http://www.scribd.com/doc/16994567/Harold-Fish

 

[Tennessee Gentleman]

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

Not necessarily, neither of those incidents you mention would have produced police reports. Was Kuenzli arrested in either of these instances? Again, when I see posters saying he "was a violent criminal" and "evidence of his behavior was witheld from the jury" the facts of trial don't back that up. My point is not that Kuenzli was an angel, apparently he was a kooky guy. That doesn't in and of itself warrant a death sentence. You still have to show that you acted reasonably. The jury thought otherwise and you just read the comments of one that character was not the issue, only what happened that day.

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

For more issues than just Kuenzli's character. Fish is still in jeopardy and as I have stated before; whether he gets out of prison or not the lesson we as responsible CCW folk should learn is that you need to think out now how andwhen you might use deadly force. Go to the gun too quickly and you might end up like Fish, in prison and broke. I am reminded of an old irish epitaph;

Here lies the body of Daniel O'Day,
Who died defending his right-of-way,
His right was right and his will was strong,
But he's just as dead as if he'd been wrong.

 

[Tennessee Gentleman]

TG and PT111: Now, just for entertainment purposes, with what the appellate court basically concluded from the above paragraphs, do you guys still think there is no reasonable doubt that Fish is a murderer?

What the appellate court concluded was that the trial court made errors in the first trial of Harold Fish. The appellate court did not say there was reasonable doubt as to the guilt of Harold Fish.

To answer your question I have doubt based on the material I have read (like you not being privy to the entire bank of evidence) that Fish acted reasonably. My point has been and will continue to be that I don't believe Fish had to shoot Kuenzli and had he not used his gun to begin with the situation would not have gotten out of hand. That is my opinion and I think the message to all of us is to use the gun only as a last resort or possibly face the nightmare that Fish has had to face. Obviously some here differ with my view and that is OK but remember that the jury will decide your fate, not the posters on this forum and they will probably not be gun nuts.

 

[RDak]

Well I obviously disagree with your conclusion on reasonable doubt but agree that we can be subject to jurors who will continually "fight the facts" and let their personal intuitions or individually perceived evidence interpreting "abilities" override those facts as presented to them.

On that, we wholeheartedly agree.

(Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!)

But I did make some inroads with you when you state that you have "doubts" Fish acted reasonably. I assume you now feel there is reasonable doubt that Fish is a murderer?

Murderer is the question TG. You also state you "don't believe" Fish should have shot Kuenzli. "Don't believe" isn't strong enough to conclude "no reasonable doubt" is it?

Finally, as to not having access to the "entire body of evidence", I made my comments by directly analyzing the appellate court decision. They had access to the entire body of evidence and made the main conclusions I outlined in my previous post.

 

[Frank Ettin]

...Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!...

No! The appellate court absolutely did no such thing. The appellate court found reversible error, defects in law or procedure that warrant a new trial. Such a finding is not by any means a comment on the merits of the case.

Personally, from what I know of the case I think that Fish had an excellent claim of self defense based on disparity of force. And it also struck me that errors in law and procedure by the trial judge hampered Fish's presentation of his defense.

It seems that the appellate court agrees that errors by the judge at trial impaired Fish's defense case. But to characterize the appellate court ruling as a finding of reasonable doubt is to demonstrate a fundamental lack of understanding of the law and the legal system.

 

[PT111]

Rdak, I never said that Mr. Fish was a murderer and I never said that Mr. Kuenzli was an angel. Please read carefully the quote from whereever it came from.

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.

In neither case did Mr. Kuenzli harm anyone. He scared the stuffings out of them but never harmed them.

As we know Mr. Fish was walking along minding his own business.

Two (or three?) dogs start charging at him barking and growling. Mr. Fish is scared witless right then.

He pulls out his pistol and fires a warning shot into the ground.

The dogs trun away.

Mr. Kuenzli comes running down the hill cussing and waving his arms.

Is Mr. Kuenzli armed? They found a screwdriver in his pocket but he never showed it to Mr. Fish. Mr. Fish didn't know if he was armed and had no reason to think he was armed. In other words Mr. Kuenzli was not armed excpet with his fists.

Did Mr. Kuenzli exhibit the same actions that he had in previous encounters over his dogs. YES! There will be several witnesses to testify to that just as Mr. Fish described.

Would Mr. Kuenzli have harmed Mr. Fish? If were are to believe that he exhibited the same behavior that had in the past the answer would be no. There was not reason to think that Mr. Kuenzli would have harmed Mr. Fish based on past behavior.

Did Mr. Fish know that? No, and there was no reason to think that he did know it.

Mr. Fish fired a warning shot at the dogs and they turned away. Did he fire a warning shot at Mr. Kuenzli? I don't recall that he did and some may question why dind't he.

Was Mr. Fish in fear of his life from Mr. Kuenzli? I am not sure if he was in fear of his life or was he just afraid of getting hurt.

What we know is that a crazy man that scares everyone around him concerning his dogs finally runs into a man that is carrying a gun. He exhibits the exact same actions toward the man with a gun that he has exhibited toward many other people. No one has ever goten seriously hurt until he finally runs into the man with a gun.

Mr Kuenzli acted the exact same way toward Steve Corich, director of public safety at Mesa Community College that he acted toward Mr. Fish. However Mr. Corich did not shoot him.

He acted the same way toward Clayton Hamblen as he did toward Mr. Fish but Mr. Hamblen did not shoot him.

I really don't think the added testimony of others is going to help Mr. Fish as much as most of you are trying to say it will.

As for the technicalities of the law on what is an attack or assault etc. I don't know and can't even give an opinion on. But if Mr. Fish elects to have a new trial the jury is going to have to discuss all of this and reach a conclusion.

 

[Tennessee Gentleman]

but agree that we can be subject to jurors who will continually "fight the facts" and let their personal intuitions or individually perceived evidence interpreting "abilities" override those facts as presented to them.

And there my friend is the rub. You see, I am a pragmatist and I don't want my financial health or freedom in the hands of those cats if I can possibly help it. Whether we agree with the system or not it is what we will be judged by. Therefore, I find it very important to do everything I can to avoid the process. I bet Fish wishes that as well.

(Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!)

See fiddletown's comments. You need to learn the law RDak as your life may depend upon it.

But I did make some inroads with you when you state that you have "doubts" Fish acted reasonably. I assume you now feel there is reasonable doubt that Fish is a murderer?

Sorry but I have always felt the Fish case was a "bad shoot" and doubted the claim of self-defense. However, I have no problem with the appellate court reversing the trial court and allowing more evidence to be produced. I still think Fish overeacted based on what evidence I have read therefore...

Murderer is the question TG. You also state you "don't believe" Fish should have shot Kuenzli. "Don't believe" isn't strong enough to conclude "no reasonable doubt" is it?

If you kill another human being intentionally and cannot support the claim of self defense what would you call it? I call it murder. As I have said (and I did read a lot about Kuenzli the jury did not) I have no problem with the original verdict reached by the jury. Bottomline for me; Go to the gun last not first.

Finally, as to not having access to the "entire body of evidence", I made my comments by directly analyzing the appellate court decision. They had access to the entire body of evidence and made the main conclusions I outlined in my previous post.

What they did not do was find reasonable doubt of Fish's guilt. Only the jury can find issues of fact. Therefore you are still as much in the dark about the entire body of evidence as I.

 

[Tennessee Gentleman]

PT111,

I really don't think the added testimony of others is going to help Mr. Fish as much as most of you are trying to say it will.

Very good post and I agree. Actually, one of the jurors did question why Fish did not fire a warning shot for Kuenzli. The quote was something like: "He fired a warning shot for the animals but not the man". Many folks on TFL and Instructors don't like arning shots. I don't either and IMO the first warning shot fired by Fish started the party. If Fish had not fired that shot and just warded off the dogs with his walking stick maybe Kuenzli would be alive today and Fish would be free.

What we know is that a crazy man that scares everyone around him concerning his dogs finally runs into a man that is carrying a gun. He exhibits the exact same actions toward the man with a gun that he has exhibited toward many other people. No one has ever gotten seriously hurt until he finally runs into the man with a gun.

Great summary and for those of you nice folk out there in TFL land who will say silly things like; "Good Riddance" or "Cleans out the Gene Pool" just remember that Joe and Jane Jury might not buy that and to prison you may go if you act accordingly. Also the idea that those of us who own guns are doing society a favor by killing people like Mr. Kuenzli might need to reevaluate their morals or the jury may do it for you.

 

[Big Ugly Tall Texan]

Interesting story and post

That gives much to think about.

Shoot, don't shoot can be a very close call and can be a no win situation.

Often a man can be angry or drunk or whatever and be a totally different person than they would be normally. Many times when I was a police officer, I would have to fight a person I knew who was intoxicated or angry or both.

Almost without exception, after they had calmed down, they would look me up and apologize for their behavior - while rubbing the bruises and cuts they got in our altercation. And I could tell they were genuinely sorry for their behavior.

A few times, their actions would have justified the use of deadly force - but I withheld such force - perhaps foolishly - because I knew they were not behaving like they normally would. Those cases all worked out for the better, but they could just have easily gone bad.

One of my sergeants shot and killed a man he had known his entire life. The sarge's back-up was a deputy sheriff who was the man's cousin. But he was high on spray paint and came at them with a butcher knife so hard and so fast they saw no option except to pull their sidearms... and tragically in my sergeant's case, shoot the assailant/friend.

Another point RE: the following from fiddletown:

No! The appellate court absolutely did no such thing. The appellate court found reversible error, defects in law or procedure that warrant a new trial. Such a finding is not by any means a comment on the merits of the case.

It is my understanding that is all an appellate court ever does. They never rule on the merits of the case, simply on the way the trial was conducted. They determine if due process was followed.

 

[mavracer]

Sorry but I have always felt the Fish case was a "bad shoot" and doubted the claim of self-defense. However, I have no problem with the appellate court reversing the trial court and allowing more evidence to be produced. I still think Fish overeacted based on what evidence I have read therefore...

I guess we'll have to agree to disagree.He may have overreacted in firing a warning shot at the dogs however I don't belive this act broke any laws.
In the previous reports Mr. Kuenzli became enraged when told to put a leash on his dog in the first case and that he couldn't bring his dog into court.
Nobody had ever shot a gun at his dogs before.IMHO it's reasonable to think Mr. Kuenzli was more enraged than ever and a physical confrontation was more likely than ever.

 

[johnwilliamson062]

A household golden retriever can make one heck of a mess of someones arm. I have seen it on a boy cutting through a fenced back yard. Dog had no history of biting. Maybe the kid messed with the dog, IDK. It happens sometimes. Some breeds are worse, but dogs get confused as to the situation or are set off by some action and almost any breed can become volent. Anyways, the dog does not need to be trained to cause significant bodily harm, of that I am sure. That is like saying someone untrained in the use of a handgun will probably miss so you should not take them as a threat when they are trying to shoot you.

I think it is perfectly reasonable to assume there is reasonable chance the dogs would have responded to a physical confrontation. If they had there would have been a great disparity of force. The man was facing an aggressive adult male unknown to the person, and two dogs trained by the person and also aggressive. I am not sure I would shoot, but if the smoke cleared and I had shot I certainly wouldn't think to myself, "that was a terrible decision, they clearly were not a threat to you."

A few times, their actions would have justified the use of deadly force - but I withheld such force - perhaps foolishly - because I knew they were not behaving like they normally would.

Doing so is an act of charity. You aren't required to do so by law and I won't judge you for failing to do so, but I will commend you if you do.

 

[RDak]

Oh please guys, stop with the I don't understand the law and all that stuff. I've known for decades that appellate courts allow the prosecutor to retry cases like this that they have reversed, but I was going beyond that and making conclusions on the language used by the appellate court justifying their reversal.

The appellate court addressed numerous substantial weaknesses in the trial proceedings, and the judge's instructions to the jury, that made them conclude Fish did not get his fair day in court.

They, in essence, concluded that had the judge followed proper procedure, etc., the jury could very well have come to a different conclusion and, as a result, the appellate court reversed the conviction and sentence accordingly.

Had those errors not risen to the level of casting doubt on the "no reasonable doubt" verdict, (i.e., in the minds of the appellate judges), the appellate court would not have reversed the conviction and sentence.

They most definitely felt the outcome might have been for acquittal and that there was the definite possibility of reasonable doubt had the trial been conducted properly. That's why they reversed the conviction and sentence. That was their judgment.

There were many conclusions made by the appellate court indicating some of the lower court's interpretations and procedures didn't effect the fair decision making of the jury.

However, other errors by the lower court prevented the jurors from considering and knowing substantial facts, and law, that the appellate court concluded could have swayed them into decidinig there was reasonable doubt. Otherwise, as I stated, they would not have reversed the conviction and sentence.

Had these other errors been inconsequential, the appellate court would not have reversed the conviction or sentence.

The only way Fish can be convicted of murder now is for the prosecutor to open a new trial, present the required evidence, have the judge provide the proper legal instructions to the jury and let the jury decide if Fish is really a murderer.

Sure the prosecutor has another chance but, if you read the appellate court decision and come away thinking those appellate court judges felt Fish had no reasonable cause, then I question your reading and comprehension ability.

Let me put it another way, if I was the prosecutor I would not retry this case after reading the appellate court's opinion. The reason being the appellate court clearly felt the trial was unfair and prevented an honest outcome. That's why the conviction and sentence were reversed.

At least, that's what I would have done with cases assigned to me before I retired. An honest prosecutor, judge, or litigator, will read between the lines and realize there may have been a travesty of justice, especially so if an appellate court decision makes it so clear. (They felt Fish's due process rights were violated for pete's sake. That's usually tantamount to saying the outcome might very well have been different.)

 

[Frank Ettin]

Had those errors not risen to the level of casting doubt on the "no reasonable doubt" verdict,...

If you are going to spout off about the law, you should at least learn to use terminology correctly. "Reversible error" means that the errors could have affected the result. "Reasonable doubt" refers to the standard of proof in a criminal case and the level of certainty to which the jury must find the existence of the facts supporting a guilty verdict.

The appellate court was not sending secret signals about its view of the merits of the case. Appellate courts don't do that. Real life is full of cases sent back for re-trial to exactly the same result as the first time around. The function of the appellate court is to preserve the integrity of the process and not to telegraph veiled signals about the way the case should turn out.

So your analysis of the appellate decision is way off the mark. You are reading far too much into it.

And on balance, I tend to think that a re-trial should yield a different result for Fish. The fundamental question remains whether a reasonable and prudent person confronted with a larger and younger man running full tilt down hill towards him while shouting death threats would conclude that lethal force was necessary to prevent immediate death of grave bodily injury to himself. We'll see how things turn out.

But to suggest that the court of appeals concluded that such should be the result is overreaching.

 

[RDak]

Well, we'll just have to agree to disagree on this one. (You're right though, reversible error could have resulted in reasonable doubt. )

And on balance, I tend to think that a re-trial should yield a different result for Fish. The fundamental question remains whether a reasonable and prudent person confronted with a larger and younger man running full tilt down hill towards him while shouting death threats would conclude that lethal force was necessary to prevent immediate death of grave bodily injury to himself. We'll see how things turn out.

We agree on this though!!

 

[Frank Ettin]

You're still wrong about the court of appeals. And yes, I'm a lawyer.

 

[Tennessee Gentleman]

A household golden retriever can make one heck of a mess of someones arm.

I haven't read any posts that stated a dog cannot serverly injure a person but rather could a person with a wlking sitck fend off such an attack from a normal (not attack trained) dog? IMO the answer is yes. All dog attacks are not fatal and the type of dog will matter in that regard. BTW Kuenzli had not "trained" those dogs he was just taking them out for some exercise.

 

[Tennessee Gentleman]

You're still wrong about the court of appeals.

You are correct sir! We'll see if Fish gets a better outcome the second time. I'm betting he pleads out.

And yes, I'm a lawyer.

That was obvious.

 

[johnwilliamson062]

could a person with a wlking sitck fend off such an attack from a normal (not attack trained) dog?

2 dogs while engaging a younger adult male is the question. IMO there is no way it could be done without injury by anyone not well trained in H2H SD and even then would probably involve injury.
I don't know the size of these dogs, or the age, but I would not want to face two dogs with a walking stick. Attack dogs are not trained all that much on how where to bite, they are trained on when to bite. Dogs know to go for the neck if they can reach it.

 

[Tennessee Gentleman]

2 dogs while engaging a younger adult male is the question.

That was not the situation. Until Fish fired his weapon Kuenzli was not engaged. Warding off two pound mutts with a walking stick does not require hand to hand training.

I don't know the size of these dogs, or the age, but I would not want to face two dogs with a walking stick.

You can look them up on the MSNBC article. They were nothing special. I have faced two dogs with a stick and did well. They ran away. IMO Fish was ****** that they were running free and decided to teach them and I guess the owner a lesson and fired his weapon. This seems consistent with the reports I have read about Mr. Fish's personality. He sounded rather arrogant.

 

[kiov]

Looked like a good shoot to me from the very beginning. I do think we can all learn a lot from what he went thru.

Just because we feel a shoot is good, doesn't mean a jury or judge will feel the same. Many folks in this country feel anyone carrying a gun, other than police or military, are crazy. Figure you might start from that position...so, as TG said many times, think long and hard before pulling your gun on an unarmed man.

I also know everyone is hot on CM shots, but couldn't Fish have shot him in the leg? Its not close quarters, so he could back up as he shot. Do the first 2 really have to go CoM in every situation?