Harold Fish Not to be Retried

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Railroaded. v. tr. Informal (The free Online Dictionary)
a. To rush or push (something) through quickly in order to prevent careful consideration and possible criticism or obstruction: railroad a special-interest bill through Congress.
b. To convict (an accused person) without a fair trial or on trumped-up charges.

Railroad (Merriam-Websters Online Dictionary)
Function: verb
Date: 1877
transitive verb
1 a: to convict with undue haste and by means of false charges or insufficient evidence b: to push through hastily or without due consideration

Tennessee, the errors listed by the appeals court show that Fish did not get a fair trial. There was insufficient evidence to get a conviction, had the errors not occured. He was, by the above definitions, railroaded.
 
Antipitas said:
He was, by the above definitions, railroaded.
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Al, I guess we will disagree. Unless, you are going to call every successful appeal on trial errors "railroading".

What is implicit in those definitions is intent either by undue haste or knowingly false charges. Neither of these occurred.

Trial judges make mistakes and get overturned now and again but I think using the term "railroaded" implies deceit and wrongdoing on the part of the judge and there is no evidence of that I have seen so far.

I really don't think the trial judge "had it in" for Mr. Fish and purposely ignored rules in an attempt to get him imprisoned. If there is evidence to the contrary please show me.

Antipitas said:
There was insufficient evidence to get a conviction, had the errors not occured.
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The appellate court didn't say there was insufficent evidence to convict Fish but rather the court erred in procedure with jury instructions. That is a big difference.
 
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In this particular court case, the judge was either inept to preside over a SD shooting case or he intentionally mislead the jurors with instruction and description of the law... in either case the appellate court came to the right conclusion...
Brent
 
If someone continues to charge me although warned, and although I have a legally held weapon in my hand, should I have any reason to believe they won't attempt to take that weapon from me and use it against me? The person has already demonstrated aggressive, unwarranted behavior.
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TG: I would say unless you are truly left with no other options, then disengaging, descalating and trying to get the Heck out of Dodge might be better.
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Always. But, I was describing a different scenario, and asking a different question. Would the reasonable (if so adjudicated) fear of being disarmed of your legally held weapon and murdered constitute legitimate self defense?
 
The challenge with a SD claim that is different from a normal murder charge is you have to admit that you intentionally shot the other guy when you raise the claim of SD. That alone is accomplishing a lot of the prosecutor's case needed to put you away. I am not sure burden of proof will make that much difference if you shoot an unarmed man and can't show some justification like disparity of force. A man is dead and if the jury thinks it isn't fully justified you may be taking that long government paid vacation.
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You are correct that no matter what the law says it will still come down to convincing a jury.

As Pax says a lot of people posting on her need to read at least the appeallate court ruling. The mistakes of the judge were not a "railroading" as many claim it was but a misinterpretation of laws that the appeals court needed to clearify.

One must also remember that our justice system is an adversarial system which means that each side, just like in a football game, is required to do their best ot win the case. Seldom does justice come into play but rather winning or losing for your side. In this case the prosecutor did a better job than the defense. The appeals court ruled that the referee (judge) made some incorrect calls and a rematch was in order.
 
maestro pistolero said:
Would the reasonable (if so adjudicated) fear of being disarmed of your legally held weapon and murdered constitute legitimate self defense?
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Sure, taken in isolation without any other facts present. I would say the same thing however about the duty to retreat (which varies state to state) in which one does not have duty to retreat if one can't do it safely.

But your question has too many other variables that are unspoken. How did you get to the position you describe? Did the two engage in mutual combat? Was it reasonable to pull the gun in the first place? Could an armed robber use your defense when he pulled a gun on someone to rob them and then shot them because they tried to take away the gun?

Again, these and many more questions would have to be posed in order for a jury to make a good decision.

The real question that needs to be answered I think when you shoot someone who was unarmed (and no, unless you are a prizefighter or Bruce Lee the law IIRC generally does not recognize fists as lethal weapons) then you must convince the jury that there was such a disparity of force between and your attacker you had to use deadly force. I recommend reading Massad Ayoob's In The Gravest Extreme start on page 6. You will see that that it is an interpretive issue and so your suggestion of what the assailant could have done may not help your case. It did not help Fish.

Also read about equal force on page 9.

Here is Mas's take:

A vastly greater degree of force-drawing a weapon that threatens deadly force before the same has been threatened against he who draws-voids the claim of reasonable self defense if a killing occurs
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One must also remember that our justice system is an adversarial system which means that each side, just like in a football game, is required to do their best ot win the case. Seldom does justice come into play but rather winning or losing for your side. In this case the prosecutor did a better job than the defense. The appeals court ruled that the referee (judge) made some incorrect calls and a rematch was in order.
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This is not entirely true. The prosecuting attorney and defense attorney have different roles and obligations. Specifically, the prosecutor is not permitted to "win at all costs". He is obligated to turn over any and all evidence he recovers that he will present at trial or which could be exculpatory. It is also an ethical violation for a prosecutor to bring to trial someone he knows not to be guilty of the crime, regardless of the evidence - in other words, if he knows the evidence is dubious, he can't bring charges against the defendant.

On the other hand, the defense attorney is under no requirement to turn over incriminating evidence to the prosecutor that he/she might discover during trial preparation. That's not to say he is allowed to conceal or destroy it, but he's under no obligation to reveal it or its significance prior to trial. A defense attorney is also free to explore alternate theories of a crime during trial, even if he knows them to be ludicrous and unfounded.

There are plenty of other differences in the roles and obligations of opposing counsel in a criminal trial, but you get the idea. The legal burden on the prosecutor to protect the defendant's rights is much higher than that imposed on the defense counsel to protect the peoples' right to a fair trial.
 
When I say win at all costs i am talking about legally not necessarily ethically. Unfortunately in our adverseral system the emphasis is on winning a conviction by the prosecutor rather than justice being served. Efer notice how the two legal teams go at each other's throat in the courtroom and then go play golf or have lunch together.
 
There are some troubling aspects to this case.

He fires warning shots at the dogs but kills Mr. Kuenzli?

Why would you do that?

I am not informed enough to make a decision on this.
 
Far as I remember, it was said Kuenzli said something like, "I'm gonna kill you!" as he lunged for Fish. That could be construed as a definite threat to your life, unless I'm misremembering.:D
 
Warning shot, ugh... a waste of ammunition, not to mention who knows where that round will end up.

Ayoobs' book is a good one

Edit - If you fear grave bodily harm or death this is why you announce your intentions such as "Stop, do NOT come any closer!" or if you've drawn a weapon, "STOP or I WILL shoot!" - This is your warning shot, you've made your intentions known that self defense is an option you're willing to explore and works a lot better than "DIE YOU MOTHERF***ER!", especially if heard by another witness right before a gunshot ;-)
 
Many CCW instructors tell you not to do that and in some states that is against the law.
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Yes many people seem to think a dead victim laying in the alley/boonies is somehow morally superior to the person with the smoking gun explaining to the cops how the criminal got the bullet wound.
more and more states are passing castle laws which remove the obligation to retreat.
 
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