Harold Fish Not to be Retried

[Brian Pfleuger]

But the appropriate action would have been to fend off the dogs with the walking stick...?

Yes, better than a gun. It's a significant stretch to believe that a man will react the same way to your fending off his dogs at arms reach with a stick as he would to your shooting at them.

The 2 dogs exhibited enuff aggression to warrant being shot.

Not to me they didn't.

The verbal threat against my very being also warrants being stopped with force.

Ability, Opportunity, Jeopardy, Preclusion

Ability and opportunity are probably there. Jeopardy is extremely questionable, people with bad tempers don't instantly qualify to be shot. Preclusion is completely non-existent. Fish did not exhaust all other possibilities. He didn't exhaust ANY other possibilities.

He already looked like a bad guy to many in the community if not just a physcho...

Well he's certainly no hero, but anger management issues don't generally qualify for capital punishment. Especially absent ANY use of force.
Remember, the ONLY person who used ANY force in this situation was Fish.

 

[hogdogs]

Peetza, We clearly disagree on this issue... It likely has alot to do with how we were raised as well as where... If any person of substantial stature comes at me in a hasty manner with arms flailing and threatens my life verbally, I will not hesitate one second to bring a firearm to bear and the warning to stop will be very fast and the 2 CoM that follow will be mighty quick too... And it is 100% legal where I live as well as morally acceptable to me to do so... I don't have to wait to be struck or worse to decide I am in fear of GBH or death.
Brent

 

[Brian Pfleuger]

And it is 100% legal where I live as well as morally acceptable to me to do so... I don't have to wait to be struck or worse to decide I am in fear of GBH or death.

I don't either, but it had better be more than a man running and waving his arms whilst yelling at me. It THAT case, something approaching physical contact would be required. Otherwise, where is the jeopardy, where is the preclusion? IF I was 60 then ability might be present.

The presence and situation with the dogs actually makes things worse for Fish, IMO. If he had been hiking and some nut job came out of nowhere, screaming threats and running at him he would have more justification for shooting than he did in this case.

I mean, what did he THINK was going to happen? Did he suppose that after he shot the dogs owner was going to be like "Damn, nice stop man. Those dogs never listen to me, maybe I should try warning shots when they misbehave..."

Of course the owner is going to be angry. Do you shoot him because he's mad at you?

Is he stupid for running at an armed man? Yep. Is he an idiot that deserved a good whoopin'? Yep. Did he really, truly deserve to die?....

 

[mavracer]

It's a significant stretch to believe that a man will react the same way to your fending off his dogs at arms reach with a stick as he would to your shooting at them.

Are we are talking about the same guy here.the guy who charged two officers,one for telling him to put the dog on a leash and the other not allowing him to enter a courtroom with the dog.
WHO'S STRECHING HERE?

Not to me they didn't.

Why didn't you testify at the trial then?

Remember, the ONLY person who used ANY force in this situation was Fish.

only because Mr Kuenzli wasn't given the opportunity.

 

[Brian Pfleuger]

Are we are talking about the same guy here.the guy who charged two officers,one for telling him to put the dog on a leash and the other not allowing him to enter a courtroom with the dog.
WHO'S STRECHING HERE?

Fish could not have known that. It has no relevance.

only because Mr Kuenzli wasn't given the opportunity.

He'd been given the chance many times before.... and nothing.

Once again, Fish BEGAN the encounter with force. Kuenzli was responding to what HE perceived as a threat. Did he do it in a stupid way? Yep. Did he deserve to die?....

 

[hogdogs]

Do you shoot him because he's mad at you?

NOPE!!! Absolutely not!!! If that were the case I would have a trail of corpses miles long and yards deep behind me
But I would shoot a man who has threatened to kill me while running at me with rage in his eyes and arms flailing as if he is readying himself to beat me to death.
And if he did this while I had a gun out... I would be positive he meant to try.
And my physical size leaves all but the horse jockey my size or larger...
Brent

 

[hogdogs]

DOUBLE STANDARDS ARE BAD FORM IN A DEBATE....

only because Mr Kuenzli wasn't given the opportunity.

He'd been given the chance many times before.... and nothing.

Fish could not have known that. It has no relevance.

Peetza, May I get a "touche"?
Brent

 

[mavracer]

I don't either, but it had better be more than a man running and waving his arms whilst yelling at me. It THAT case, something approaching physical contact would be required. Otherwise, where is the jeopardy, where is the preclusion? IF I was 60 then ability might be present.

I'd say 5-8 feet is approching physical contact range.

Fish could not have known that. It has no relevance.

It does when your trying to play monday morning quarterback and say Mr Kuenzli would not have reacted violently to Fish fending the dogs off with a stick.

He'd been given the chance many times before.... and nothing.

actually this is where this belongs
Fish could not have known that. It has no relevance.

 

[Brian Pfleuger]

Brent, I was basing it on Mavracers assumption, not Fish's assumption.

Kuenzli's past had no relevance to Fish at all, since he could not have known.

Mavracer is making an assumption whilst knowing Kuenzli's past, which is basically one of a guy with really bad anger management problems. There is no reason to believe that this time would be worse than previous times. He had never been a DEADLY threat before, no reason to believe he would be now.

 

[mavracer]

Did he do it in a stupid way? Yep. Did he deserve to die?....

According to Darwin, yes.sometimes stupid should hurt and sometimes even fatal.

Brent, I was basing it on Mavracers assumption, not Fish's assumption.

still a double set of standards my assumption was refuting your assumption of Kuenzli's reaction to you hitting his dog's with a walking stick.
you are doing the same thing the Judge was repromanded for in the first trial.testimony of Kuenzli's former behavior has no bearing other than to show that in this instance he was the aggressor.

 

[hogdogs]

Brent, I was basing it on Mavracers assumption, not Fish's assumption.

Kuenzli's past had no relevance to Fish at all, since he could not have known.

Yes I did understand you correct I see...
Again, no relevance.
Fish also could not have known the deceased was known for veiled threats and posturing in aggressive overtones.
Thus he had no reason to feel the deceased was bluffing in his announcement to end an innocent hikers life who had fired a gun into the dirt rather than encourage further attack by striking them... he had no idea they were owned. He had no idea they were from a homeless man's squatter camp.
Striking aggressive does guarantees nothing and the odds of it scaring off aggressive strays can be considered no better than 50/50...
Wild/feral/stray dogs that approach a stranger are more likely than not, going to bite and rabies is great bodily harm.
Brent

 

[Brian Pfleuger]

Of course, we're still basing ALL of these assumptions on the greater assumption that Fish is accurately describing the events.

Eye witness testimony is notoriously unreliable and testimony from a man who's explaining his own actions is worse yet.

Even on the assumption that the story is accurate:


Fish began the encounter with a firearm. This was the wrong move. Kuenzli, apparently, charged at a man who not only had a gun but had already shown a willingness to use it.... wrong move.

Two wrong moves make a dead man, in this case. Probably without real cause.

Guns are the LAST resort, not the first.

My original statement stands.
Regardless of your opinions on the matter, it is hard to believe that Fish would be glad that he pulled the trigger that day. Even if you think he is, it should still give you cause to consider your own potential actions in a similar incident.
If you would have shot, and plan to if such a thing happens to you, well, good luck to you. Really, I'm serious. I wish you no harm or legal troubles.

As for me, no, I will not shoot in such a case, not at that point anyway.

 

[Glenn E. Meyer]

FYI: This is an analysis of the Fish scenario from the NTI guys.

The Fish case has always been interesting form an incident fact scenario as well as a litigation process perspective. It is instructive on many counts.

The decedent in the case was a classic study of a form of VCA that can be fit into the "marginally violent" category. The various violence oriented categories are developed through cataloging specific personal characteristics adopted by the individual and projected by him to those he encounters in life. Marginally violent people adopt a personal view of themselves as violent. Others whom they encounter see them as violent as a result of their behavior designed to project themselves as violent, dangerous and someone to be wary of. When they engage in violent acts they typically fall into two categories of incident. First is an act of "self-defense", not specifically justification, that is not infrequently occasioned by incidents constructed by the MV person. The second type of VCA act by such people is the result of an anger/frustration incident, again not infrequently occasioned by events constructed or mined for an opportunity to express anger/frustration.

The decedent clearly had an extensive history of such projections.
Those who watched the case profile of this case as done on one of the TV news magazines may recall the number of people, including public officials, who encountered the decedent in one of his many such displays. Each of them described their reaction as fully expecting a violent attack by the decedent during the encounter. One of the public officials opined that prospectively he expected to hear of an incident in which the decedent killed someone during one of his anger/frustration displays. Each of the encounters was constructed by the decedent.

Additionally, the decedent was found with a screw-driver in his hip pocket. He was walking dogs in the deep woods a location inconsistent with the immediate need for such a tool. MV-VCA commonly have implements on their persons that are or readily can be employed as weapons. Fish never saw the screw-driver until after the shooting.
Of course, there was no reason for him to see it, only feel it when the remaining 5 feet separating them was closed.

The instinctive perception by Fish of his jeopardy at the instant he fired is hard to dismiss.

As Dr. Glenn noticed, the Court did not mention the 10m/m issue that some jurors considered during their deliberations. The reason is simple. Review of the decision of a jury is not the province of the courts. Any evidence before the jury that they derived from the witness stand my be evaluated in any fashion the individual juror or the jury as a whole cares. Among the issues appellate courts examine is the propriety of the trail courts admission or exclusion of certain evidence for their consideration and instructions by the trial court on how that admitted evidence can be used by them in their deliberations.

The appellate courts discussion of the admissibility of the evidence of the decedents violent history is very instructive on the subject.
It is well worth the time for each Practitioner to study so as to gain an understanding of how evidence of a VCA's past violent acts can be entered into evidence despite the general prohibition for such acts to be entered into evidence before the jury when they are unknown to the Practitioner at the time of the assault. Declarations within "gun publications" notwithstanding, for every rule of evidence there is almost always built in exceptions. Detectives who build cases for trial know the rules of evidence and the exceptions and use such knowledge to fashion available evidence to make it relevant.

In this case the appellate court pointed to the conduct of the prosecution as a reason the court should have allowed direct evidence of specific prior violent acts that mirrored what Fish encountered as one of the reasons the case should be remanded for another trial. At a hearing outside the presence of the jury the trial court ruled in favor of the State and barred the jury from hearing the testimony of witnesses that had similar encounters and were made to feel fearful of assault by the decedent. Having successfully excluded the evidence from the juries hearing that evidence the State decided to "get cute"
and posture to the jury that Fish had no reason to fear the decedent as he was merely trying to restrain the dogs. The States position was intentionally, knowingly and dishonestly taken solely for the purpose of gaining a tactical advantage at trial following the successful exclusion of evidence that would have demonstrated differently.

In trials, the truth is only coincidentally useful if it leads to a favorable verdict for the respective side.

The real lesson in the Fish case runs counter to the popular myth often promoted in training schools and magazine articles.

Fish made numerous and full statements to the police and Grand Jury.
He cooperated in the investigation until the time of his indictment.
Any reading of the appellate courts ruling shows that played an important role in their opinions. They cited his cooperation. They compared his statements with the physical evidence at the scene and observed the statements and physical evidence were consistent. They used his statements of what he encountered in the decedent to correlate with what others had encountered with the decedent in the past. They used his explanation of the conditions at the scene to explain why he felt trapped and unable to extricate himself from the situation. In short, while the appellate court could not use this terminology, they found him credible. He explained himself and the evidence supported him.

There are many good lessons in this case. No one can tell you what your test will look like when it comes to you. Occasionally they will look something like the speculative musings in many held discussions on the topic. Occasionally they will look like nothing you or others can imagine. No decision is without consequence. make the best decision you are able. Be prepared to accept the consequences.

 

[hogdogs]

Glenn, that was a worthwhile read! Reinforced every opinion I have had but with official mumbo jumbo
Brent

 

[AZAK]

I'm not asking right or wrong. I'm asking, if you were Fish, which would you pick?

1) A dog bite.
2)Kill man, spend 3 years in jail, spend $500,000, be sued in civil court.

The true difficulty here is that Fish, or anyone else for that matter, is not given these choices at the time of confrontation.

Time does not stop/freeze while someone dressed in a tux/gown standing at a podium in their best MC voice asks this question. "Behind door number one we have a dog bite, or will you go for door number two with: kill a man, 3 years jail time, half a million of your own dollars gone, and finally to be sued in civil court?" (All said while flashing an ultra-white dentally enhanced smile.)

In reality it is more like a game show where you do NOT know what is behind door number one, or two, and guess what there is also a door number three! Of course anyone reasonably given your two choices would choose the dog bite, however it is not reasonable to "know" the outcome prior to the event.

In a confrontation, such as in the Fish instance, one can only guess what might or might not happen. If Fish did not know the dogs and the man, it is going to be really difficult to determine probable outcomes, especially in the span of time that the event took to take place.

This is one aspect of carrying a gun for self-defense. Knowing just when you believe/feel it is justified to use it. Tough topic. It can look like it is black and white, but in reality a whole lot of grey can sneak in very quickly; and I am talking about your own beliefs/feelings on the subject, not even considering a jury.

 

[Al Norris]

Since the State has decided not to retry the case, I don't believe we should be doing it. ourselves. We have already had several threads discussing this case (2 threads here and 2 threads in the old L&P forum).

It is evident that no one is going to change their minds.

Closed.