New law makes self-defense protections retroactive

Christian Palmer//July 14, 2009

New law makes self-defense protections retroactive

Christian Palmer//July 14, 2009

On July 13, Gov. Jan Brewer signed legislation allowing the effects of a 2006 change in self-defense laws to be applied retroactively in order to help a West Valley man sentenced to 10 years in prison for murder.

To date, Harold Fish has spent three years in prison for killing a man he encountered on a northern Arizona hiking trail in 2004.

Fish, a retired teacher, argued that he acted in self-defense when he shot and killed Grant Kuenzli, whom he says charged at him after Fish fired a warning shot to deter Kuenzli’s aggressive and unleashed dogs.

S1149, sponsored by Fish’s state senator, Republican Linda Gray, permits Fish to draw upon the 2006 self-defense legal protections by specifying that the laws apply to all defendants who had pending cases when the 2006 changes were signed into law.

Three years ago, Fish’s case was well-known among lawmakers, as the story drew national attention and Fish’s trial attorney, Mel McDonald, lobbied the Legislature in favor of the changes.

The 2006 law expanded the rights of citizens to use lethal force in cases of self-defense. Equally important, it switched the burden of proof in such cases to the state from the defendant, and it raised the degree of proof necessary to achieve convictions in such cases.

Although Fish served as a major impetus for the 2006 change of law, he was not able to enjoy its protections. The bill was signed into law by then-Gov. Janet Napolitano four days after the commencement of his trial for murder.

Fish’s wife, Deborah, exclaimed her joy that the protections of state law change would effectively cover the case of her husband, who was convicted of second-degree murder by a Coconino County jury.

“Thank God for Linda Gray and thank God for Jan Brewer,” said Deborah Fish, who noted her husband’s actions in 2004 served as the impetus of the 2006 law change. “With any luck we’ll have a husband and a daddy back home in a couple of weeks.”

Prosecutors, though, said S1449 will open the door for hundreds, if not thousands, of appeals and retrials from people eager to take advantage of the change in state law.

Before Brewer signed the bill, Pima County prosecutor Kathleen Mayer called the bill a “legal nightmare” that she said will impact 141 aggravated assault convictions and 51 murder convictions racked up by the county’s prosecutors.

That’s because the bill applies to all cases that were pending when the 2006 law change was signed in April 2006, and Mayer said she is concerned that even inmates who did not argue self-defense during their trials would now do so in hopes of reversing their convictions.

It could also doom the chances of ever achieving convictions in unsolved crimes that puzzled investigators. And although the retrials would be problematic for prosecutors, Mayer said the effects will be devastating for victims of crime and their families.

“We have hundreds of victims and victims’ family members that are going to have to relive the trauma that they went through when these cases originally were brought to court,” said Mayer, adding, “There is a broader issue here.”

Napolitano raised similar concerns when she vetoed three previous attempts by Gray to allow the legal changes to be implemented retroactively. Two of the vetoes came in a single legislative session.

Paul Ahler, a former prosecutor who serves as the director of the Arizona Prosecuting Attorneys’ Advisory Council, a council of the state’s 15 elected county attorneys, said he believes Gray’s bill will affect more than 1,000 cases in Maricopa County alone.

Ahler said the law violates equal protection clauses by applying only to cases where defendants pleaded not guilty.

Despite the opposition, Gray has kept firm, and she doubts claims that her bill will create waves of appeals and retrials. She said she has seen no proof of that.

But in the meantime, Fish’s chances for unconditional release are increasing. In late June, the Arizona Court of Appeals found that he was unfairly prevented from including character evidence about Kuenzli that backs Fish’s contention that Kuenzli intended to harm him.

His conviction was reversed and it was ordered that he receive a new trial. But, the Attorney General’s Office intends to appeal the decision to the Arizona Supreme Court, according to Kent Cattani, the chief of criminal appeals.

However, if that appeal is unsuccessful, Coconino County Attorney David Rozema announced on July 16 that his office will not retry Fish for murder. He cited a limited amount of physical evidence and the lack of a witness to the shooting.

The prosecutor also said the appeal likely will take months to conclude, and, in the meantime, Fish will be released from prison.

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