For the second time this year, the Legislature on May 2 passed a bill intended to force the retrial of a West Valley retiree convicted and imprisoned for the 2004 shooting death of a homeless man on a hiking trail in northern Arizona.
S1166, a strike-everything amendment introduced in April by Sen. Linda Gray, R-10, passed the Senate with a resounding 29-0 vote after failing to clear the House before gaining enough votes on reconsideration.
It is Gray’s second piece of legislation to help Harold Fish, a retired high school teacher and District 10 constituent found guilty of murder by a Coconino County jury last June after Fish unsuccessfully claimed self defense in the shooting death of Grant Kuenzli.
Gray said details of the case and the fact that Fish has several children at home inspired her to create the legislation.
“I’m going to bat for the six kids whose father is in prison for 10 years for defending himself on a trail from attacking dogs and a guy with a history of being unstable and violent,” she said. “This is a family man who had never been in trouble with the law.”
The first effort this session, S1302, declared that broad changes made in 2006 to Arizona self-defense laws favoring defendants were intended to retroactively apply to all such cases pending when the alterations became law last year.
The changes in 2006 allowed people to use lethal force to defend themselves in their homes or vehicles, and switched the burden of proof from the defendant to the prosecution in cases involving claims of self defense.
Last year Fish’s attorney, Mel McDonald, testified before House and Senate Judiciary committees about the then-proposed changes and how they related to Fish’s circumstance.
However, Fish ultimately was denied the benefits of the new statute by a Coconino County Superior Court judge because his trial began four days before the bill was signed into law in April 2006.
1st bill vetoed: Gray says this one is better
S1302 was the first bill of the current session to arrive on the desk of Gov. Janet Napolitano, who vetoed the measure in early March. A written veto acknowledged the intention to help Fish, but cited opposition from prosecutors claiming it would reopen a “large number of cases,” including routine assault convictions.
Gray maintains S1166 is more narrowly focused and would retroactively concern only a handful of cases because it excludes those who pled guilty or no contest.
She said public defenders have identified 13 pending cases that would be affected and six completed cases could be sent back to trial. The senator also added she is hopeful Napolitano will sign S1166 because of the limited cases affected and the absence of a “large scale cost” to the courts.
But her new concern is just the opposite. Gray said she fears the governor could construe S1166 as unconstitutional under the Arizona Constitution because it would apply to too few cases.
A legal analysis circulated by Gray states Arizona’s Constitution prohibits extremely narrow criminal laws intended to affect a single person or municipality to the “exclusion of all others similarly situated in the state,” but concludes S1166 is valid.
Fish maintains he acted in self defense in May 2004 when he shot Kuenzli three times in the chest at close range. He claims Kuenzli charged him in a threatening manner after he fired a warning shot to deter Kuenzli’s unleashed and aggressive dogs.
Defense attorney McDonald repeatedly has stated Fish did not receive a fair trial because the jury was prevented from hearing evidence and expert testimony regarding the extent of Kuenzli’s psychiatric condition and history of violent behavior.
That includes two separate suicide attempts and an alleged violent choking of a man visiting a woman that Kuenzli had been “stalking,” McDonald told the Arizona Capitol Times in June.
The Coconino County Attorney’s Office has denied any mishandling of the case, arguing that character evidence for both parties were extensively litigated during pretrial motions.
“Our position at trial was allegations of the victim’s bad character were largely irrelevant because Mr. Fish didn’t know the victim,” Coconino County Chief Deputy Attorney David Rozema told the Capitol Times in June. “These people didn’t know each other.”
Both Gray and McDonald said the foreman of the jury that convicted Fish has said a not guilty verdict would have been reached if Fish would have been tried under the self defense laws passed in 2006.
In December, Coconino County Attorney Terrence Hance told the Capitol Times the court correctly tried Fish under the old laws requiring defendants to prove they acted lawfully when using force, stating the jury had already been empanelled, instructed and received evidence in the case by the time the changes were signed into law.
He also said he doubted if the new law would have contributed to a not guilty verdict.
“You can instruct a 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.”