The attorney and wife of Harold Fish, a father of seven and convicted murderer, are eagerly awaiting the ruling of a pending Arizona Supreme Court case they hope can be used to obtain a new trial for the retired school teacher who fatally shot a man while hiking in northern Arizona.
Though trial, appeals and the high courts refused attempts by Mr. Fish to allow new legal protections passed by the Legislature this year for criminal defendants claiming self defense, a pending case involving a Tucson resident who killed a man after a night of drinking beer and smoking pot could help overturn Mr. Fish’s conviction and 10-year prison sentence.
Mr. Fish is a “blue chip citizen,” says his attorney Mel McDonald, who maintains he feared for his life when he shot and killed an irate Grant Kuenzli after the man’s aggressive dogs charged him. Mr. Fish insists he fired a warning shot to deter the animals and issued a verbal warning for Mr. Kuenzli before shooting him three times with a weapon he carried to scare wildlife.
The conviction does not sit well with Mr. McDonald, a former Maricopa County Superior Court judge and U.S. district attorney. Mr. Kuenzli had a history of violence and mental problems, he said, and the conviction is a “catastrophe,” a “miscarriage of justice,” and an “O.J. in reverse.” He regards the decision to prosecute Mr. Fish by the Coconino County Attorney’s Office as “unconscionable.”
“In my view this case was the greatest injustice that I’ve seen in my career, bar none,” said Mr. McDonald, who was appointed House special prosecutor in 2003 for the impeachment of Corporation Commissioner Jim Irvin. “There isn’t even a close second. This guy should not be in prison.”
Mr. McDonald and Mr. Fish’s wife, Deborah, are split on the pending outcome of the Supreme Court case David Garcia v. Hon. Christopher Browning. The lawyer remains optimistic the court will issue an opinion that extends the legal benefits passed by S1145 to his client. Mr. Fish’s wife of 21 years isn’t so sure.
Her husband’s imprisonment has left her a “virtual single mother of seven” children ages two to 17. The extensive litigation has brought the “financial ruin” of the family, and the prosecution of Hal, as she calls her husband, coupled with the denial of appeals, has left her fearful of becoming optimistic.
Also grinding away at her is the fact that the Supreme Court accepted the case to determine specifically if S1145 applies retroactively to criminal defendants awaiting trial in possible self-defense cases. That might not apply to Mr. Fish.
His trial started on April 24, 2006, four days after Governor Napolitano signed S1145 into law.
“There is a chance, but there is also a chance they could continue to deny it because the Garcia appeal says ‘those who have not gone to trial,’” Deborah Fish said. “Hopefully they will not ding my husband because his trial started on the 20th instead of the 24th.”
She is also not convinced the Supreme Court will uphold the Court of Appeals ruling granting Mr. Garcia, who also killed a man with a well-documented history of violent behavior, the benefits of S1145.
Upon signing, the bill immediately implemented “castle doctrine,” switched the burden of proof in self-defense cases from the defendant to the state, and also changed the degree of proof necessary to achieve convictions in such cases.
In other words, potential victims of violent assaults in their homes or cars can use lethal force with no obligation to retreat, and the state must now prove beyond a reasonable doubt that a defendant acted unlawfully, where as defendants were previously required to prove their innocence by the lower standard of preponderance of evidence.
But while Ms. Fish prepares for the worst, Mr. McDonald sees light at the end of the tunnel. The Court of Appeals in Tucson published an opinion granting Mr. Garcia the new protections when it didn’t have to do so. By publishing the opinion, the law becomes retroactive for those awaiting trial during the signing of S1145, he said.
The Supreme Court’s move to deny a state attempt to have the opinion unpublished, and thus its effects limited to Mr. Garcia’s case, may be a beneficial sign of things to come, he said.
The Court of Appeals’ September opinion cites Mr. McDonald’s testimony before the Senate and House Judiciary committees about the then-proposed law change and its relation to Harold Fish’s circumstance. The bill’s subsequent enactment as an emergency clause, which indicates the Legislature intended its provisions to take effect as soon as possible, he said.
He also believes the move by the Legislature to reposition power away from the government is rare and telling in itself.
“How many times have you seen the Legislature take rights away from the state and give them to a defendant?” said Mr. McDonald, who once secured a death sentence for brothers Michael and Patrick Poland for their 1977 murdering of two guards in an armored van heist. “This is probably the only time. Every legislative session the laws get tougher and tougher on the defendant.”
Prosecuting attorney: Office acted correctly
Terence Hance, the Coconino County attorney and chairman of the Arizona Prosecuting Advisory Council, does not criticize the Court of Appeals opinion and maintains his office acted correctly because the jury had already been empanelled, instructed and received two weeks of evidence under the old self-defense statute when the change was signed into law.
He cites the fundamental timing difference between Mr. Fish’s case and that of David Garcia and also believes even a ruling that could favor Mr. Fish might not have the effect of guaranteeing a different outcome, noting the jury found Mr. Fish’s lethal reaction “unreasonable.”
“You can instruct the jury all you want but their first consideration will be ‘what happened’ and ‘why should this person be brought before us?” he said. “And fortunately or unfortunately, depending on your point of view, juries often function with a better sense of reality than technicians of the law.”
He dismisses Mr. McDonald’s claims that “fundamental errors” were made during Mr. Fish’s trial in Coconino County and figures the effects of the well-publicized trial and ensuing harsh remarks about the case will be determined by the results of the next election cycle.
“Mr. McDonald is one voice who is paid very well to express his opinion,” he said.
Mr. Fish’s lawyer has maintained crucial information of the depth of Mr. Kuenzli’s violent past was withheld from the jury, including an incident in Mesa where he nearly “strangled” a person and another where a Gilbert fire marshal ordered a change of locks after Mr. Kuenzli was forced from a property.
“You don’t do that for people that don’t genuinely terrify you,” said Mr. McDonald. “The jury never knew those facts. They never heard the story,” adding that Mr. Kuenzli was not unarmed as maintained during the trial, but in fact had a large screwdriver in his back pocket.
Though the Coconino County Attorney’s Office has obviously taken a position on the matter, it will abide by whatever ruling the Supreme Court issues, Mr. Hance said.
“As long as we know what the rules will be that’s fine,” he said. “It’s when you change in midstream that causes the problem.”
3 disputed cases of self defense
Mr. Fish is one of three currently disputed cases of self-defense. Phoenix resident Marcus Mendez Jr., who was awaiting trial when S1145 was signed into law, was awarded the new defense standard by a Maricopa County Superior Court judge.
Mr. Mendez is accused of starting two separate fistfights at a late night party in Phoenix with Juan Harris before retrieving a gun from his car and opening fire, leaving Mr. Harris permanently confined to a wheelchair.
In Pima County, Mr. Garcia shot and killed Alexis Samaniego, who according to Mr. Garcia’s attorney, had assaulted the mother of his children twice, had been acquitted for his role in a drive-by shooting, and once beat his mother into a coma. He was also severely stabbed once after starting a fight, he said.