Harold Fish Gets New Trial Finally!

For information here is the appeals court ruling itself.

http://www.cofad1.state.az.us/opinionfiles/CR/CR060675OP.pdf


Among the reasons for the new trial:

the
court may have erred in precluding evidence of prior specific acts
of violence related to the Victim’s relationship to dogs under Rule
404(b)(2). Because we reverse and remand for a new trial on other
grounds, the superior court should reconsider this evidentiary
ruling if such evidence is offered at a new trial.

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And again it seems to be in a big way about the dogs being "dangerous instruments".

Apparently the judge initially instructed the first jury that they could not consider the dogs as dangerous instruments in Fish's decision not to flee.

55
Defendant may have initially thought that the situation
with the dogs was diffused, but when he saw the Victim charging at
him “breathing out threats and swinging,” and realized the Victim
was not coming to restrain the dogs, the presence of the dogs again
may have become a threat. Accordingly, an instruction that the
Victim’s dogs could be considered dangerous instruments and that
they may have presented a threat of death or serious physical
injury would have been proper in light of the need for an
instruction dealing with unlawful force by the Victim.

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The Fish police statement, apparently not heard by the jury:

I can’t go this way. There’s a dog right
there. I can’t go over here because there’s
too much brush and there’s a dog in there
somewhere. I can’t run uphill. [The
Victim’s] there. I can’t run downhill. It’s
steep. There’s a loose rock . . . . This
guy’s going -- if I turn and run, the dogs
will get me, he’ll get me. I’ll be dead.
I’ll be, you know, bitten by the dogs.

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This was not allowed, the judge said the jury couldn't consider the dogs a threat, which to me is just ridiculous.

Dogs being a threat to his life is one thing. However they ran off after he fired a shot. They were no longer present when he chose to kill the person he did. Even if a jury is instructed to accept the dogs as a insturment of deadly force in fishes case, they are out of the picture after the "warning shot" so I fail to see how this will affect his case. I don't recall him saying something that amounted to him seeing the dogs were going to come back, they were off somewhere.

Just like if there is a armed robber that comes out of a place that your standing outside of. They drop their gun and say don't shoot me as they see you go for yours. You shoot and kill the person when they have their hands up and are obviously unarmed. Your green light for deadly force just went away, thus you are no longer justified in using deadly force.

Could Fish have shot the dogs? I believe so. Could he have shot the man he did? Based on the evidence I see the man he shot was running towards him shouting things, possibly even tried to punch him. It takes a lot more then that to justify killing someone, otherwise bouncers at bars could justify killing 10+ people every night when drunks try to take a swing at them and shout things like I am going to kill you.

However they ran off after he fired a shot. They were no longer present when he chose to kill the person he did. Even if a jury is instructed to accept the dogs as a insturment of deadly force in fishes case, they are out of the picture after the "warning shot" so I fail to see how this will affect his case. I don't recall him saying something that amounted to him seeing the dogs were going to come back, they were off somewhere.

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How far did they run? Where did they stop running? Is it possible that they were returning to their owner?

It seems that a jury should be allowed to place themselves in Fish's shoes. The dogs broke from an initial attack, at which point it seems very unclear as to where they went. The jury should have been allowed to consider the dogs as a threat.

Could Fish have shot the dogs? I believe so. Could he have shot the man he did? Based on the evidence I see the man he shot was running towards him shouting things, possibly even tried to punch him. It takes a lot more then that to justify killing someone, otherwise bouncers at bars could justify killing 10+ people every night when drunks try to take a swing at them and shout things like I am going to kill you.

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You are missing the point that the appeals court did not.

The dogs did not run away very far, as Fish testifies. The thing is that the guy didn't attempt to restrain his dogs. If the dogs are considered deadly, and the owner does nothing to restrain them, is that not using a weapon?

It appears that's what the appeals court believes.

Think of it in a more aggressive way. If someone trains pit bulls to attack and they order those dogs to attack someone, are the dogs weapons?

Is failure to try to stop attacking dogs that you own the same as attacking with a weapon?

It appears to me that's what the appellate court is saying, that failure to try to stop the dogs was unlawful force and Fish should at least get the chance to argue that he was responding to deadly force rather than initiating it.

Whether a jury buys that next time or not we'll see, but he's going to get the chance to make that argument and he was not allowed to do that before.

*warning my post contains MY OPINON" and I have not intended for any of these to reflet on here as facts* (Sorry about the grammer)


Well I have been fighting my urge to add my 2 cents but lost the fight. Let me start by saying that I believe that we all agree that there are alot of variables that most of us will never no the real answers to. First and formost are the dogs still considered weapons after the warning shot and they disperse? I will use my self for an example in this one. Yes, any dog willing to attack should always be considered a weapon no matter what. In my younger and dumber days I would fist fight with the neighbor hood kids on occasion and we had a dog that was the kindest gentlest dog any of you can imagine. but once that dog precieved a threat to myself or brothers it was going to attack and stop at nothing less. in this instance I truly believe that even after th warning shot should he have holstered and attempted to stop the man with out the weapon that the dogs would have attacked again. and that dosent even bring into account that the man was supposedly bigger and younger. I am bigger younger stronger and meaner than my dad and lets just say I would never step into that ring again.
The second point that I would like to make is that whether or not he made verbal warnings while the man was charging down the hill is important but in my OPINON irrelevant... the warning shot should suffice. Dont know about you but I am not dumb enough to charge at someone if they just fired off a gun. for a few reasons. He is either too dumb to controll it too madd to control it or justified. any one of these reason leads me to the conclusion that that no matter how mad I might be I will not go running in there. Which in my opinion Makes me believe that the state of mind of the deceased was either crazy and undeterable or or pissed off and undeterable. either way he was bringing a "screwdriver" to a gun fight and knew about it ahead of time. There was in my OPINION no way to reason with a person like this. And a reasonable person in Mr fish's possition would then be forced to depfend himself. Once you pull you weapon to use it you do not put it back in its holster until the threat is no longer present. It is a basic firearms concept and the reason is that 1 you pulled it for a reason. and 2 your attacker knows that you have it so now you use it or risk them taking it. Personally I am not taking that risk because with that risk the most likley outcome will be the other person on trial for the same thing. Not an option for me.
We can also take a look at the bad side of these same subjects,
This man was a rapist and a murderer. he was not a steller guy by any means and and whether or not you know that before hand should make no difference in a SD case. Can I tell that someone is a bad person when I precieve that I need to defend myself? Yes otherwise I wouldnt be defending myself. that is just the way that it works.

If I offended any of you I am sorry and Mr moderator if this is inappropriate please feel free to remove.
Thanks for reading

In the The Court of Public Opinion

I pretty much agree with Rodeo4joe. I have had dogs attack and have beaten them back only to have them circle and attack again. It wasn't until their master called them off that they stopped. The warning shot demonstrated a lack of malice on Mr. Fish’s part. The screwdriver verified malice intent on Mr. Kuenzli’s part.

Harold Fish seems like a pretty decent guy. From the reports I read, Kuenzli was a Psycho. Many of Mr. Fish’s loved ones are happy that he defended himself and is still alive. Many others will sleep easier because Mr. Kuenzli isn’t.

My 2¢.

Doublenaught,

I disagree.

Making mention of the specific caliber and ammunition type in the manner the prosecutor did can only serve to inflame the jury (probably ignorant of firearms) by making them regard the defendant as "looking for a fight" or some other nonsense.

The caliber is in fact not unusual for defense, especially for carry in the field in areas with large predators, and hollowpoints are, and have been for decades, de rigeur for self-defense. If the prosecution mentions either, they should be presented in that dispassionate manner.

However, the only relevant information necessary to be stated by the prosecutor is that the defendent (lawfully) had a loaded firearm on his person but may not have used it in a lawful manner in this particular situation. I'm not saying caliber shouldn't be mentioned but it should not be used in an attempt to skew the jury's perception as the statute as written doesn't mention caliber or projectile type as an element of the crime charged.

As a prosecutor, if you can't win on the facts, without introducing emotionally-laden dreck extraneous to the particular crime at issue, you aren't doing your job properly.

Win on the relevent facts.

Not good on the trial judges record. Seems to show bias.

Even if not tried again Fish has lost. Can't get his prison time back can't get the financial loss back.
Never should have gone to court.

Prosecutors have influence and bias like everyone else.
Anyone who thinks they are legal "neutral" is just silly.

it's bad that Fish shot and killed the guy pyscho evidently that he was. hard to second guess Fish but maybe a disabling shot and slow retreat would have sufficed. a lower abdomen shot with the 10 would be very painful I think.
a poster on the first thread concerning this says that he has never seen or heard of a dog continuing attack with a slug between it's legs. it has happened to me 3X, one a large daschund-mix, another a mixture medium-sized of underterminable breed another a large chow mix all with packs, the others ran.
I used a .22LR pistol twice (my trail gun in NF), a Ruger semi-auto and a 10/22 other time. the big chow absorbed 4 SuperX's from the pistol before going down and another couple before expireing. the mongrel took 3 from the rifle before going down and another to finish it. the big dachsund (only one I've ever seen) was snarling and snapping running towards me about 35 lbs and I drilled him between the eyes first shot. I think I was lucky the other dogs took off in all three instances.
Fish may be lucky to be alive himself if the attacker had got to him though. or maybe even the dogs. If I was on the jury almost certainly I would have voted against conviction.

The one thing that seemed very Fishy to me (pardon the bad pun) about this trial was, IIRC, there was a very big discrepency between the phone call and the gunshots.

I remember a hiker saying they heard the gunshots 3 hours prior to the 911 call. If this were true, it is a very perplexing thing to say the least.

I'd probably vote for acquittal, but obviously we don't have all the facts.

Fish's lawyer could have done something about the issues of gun, caliber, ammo, etc., but he didn't.

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Bingo. I read an interview with one of the jurors and she said that the fact that he used hollow points really concerned her and was a major factor in her making her decision. If Fish's lawyer had done a better job squashing those ridiculous claims things might have turned out differently.

You know, there are two-three discussions here, and we really don't seem to have a bigger picture of the issues here (save one or two posters).


Since this is a gunny-type topic, all of us gunny enthusiasts can offer up our particular expertise (or that thereof) because we all have our orifices on this kind of subject.

I was probably one of those posters in the original thread a few years ago that expressed 'concern' about Fish's self-defense actions. I certainly became more sympathetic about them as the judicial actions ground out, particularly in light of the PA's 'anti-gunny' rhetoric.

Today, I also see Harold Fish not only as not having gotten 'justice'--but I am a bit more empathetic about the trying circumstances he was in. In sum, I have walked a bit more in his shoes, to quote a cliche, and I understand a bit better what he was dealing with.

All of us might consider my admonition here--put yourself in his shoes, and without your own particular expertise.

Jim H.

Double Naught Spy said:

Don't blame the prosecution on using perfectly legit. information in evidence

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I wasn't blaming the prosecution, just commenting that it was one of the few verified cases I knew where the actual gun caliber was used against the accused. The prosecutor is an advocate for the state, so long as he or she does so ethically.

Let me also add that, unless there was expert testimony on the subject, the defense attorney should have objected to the prosecutor's comments about a 10mm being a "killer" type caliber.

Bingo. I read an interview with one of the jurors and she said that the fact that he used hollow points really concerned her and was a major factor in her making her decision. If Fish's lawyer had done a better job squashing those ridiculous claims things might have turned out differently.

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Fish hired an expert witness to testify about the gun type and the ammo used, as well as the training Fish would have received in getting his concealed permit.

The jury didn't care. As they say, sometimes you can't unring a bell and once that idea was planted facts no longer mattered.

I can't fathom why some of you are saying he should not have fired. What was he supposed to do, holster his weapon and square off against the guy?

What happens when the crazed psychopath overpowers him and takes his weapon?

I will NEVER engage in a fistfight when I am armed. The consequences of losing are death.

As they say, sometimes you can't unring a bell and once that idea was planted facts no longer mattered.

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While this is no doubt true, I have to wonder about if a better job couldn't have been done. Maybe someone a bit more credible, maybe hitting the point hard enough to make it clear the prosecution is being dishonest by even making an issue out of it etc. What's sad is that it could have been (theoretically speaking) anything from an "expert" who stuttered a little or wasn't very attractive that caused the jurors to ignore his testimony.

I will NEVER engage in a fistfight when I am armed.

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Then you will have to prove disparity of force in your defense.

Then you will have to prove disparity of force in your defense.

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That's not even remotely true.

Disparity of force is only one reason deadly force might be allowed, it is not the only one.

http://www.shop.haroldfishdefensefund.org/main.sc

I am delighted that the Court of Appeals acted in equity and fairness in this case. I found the site for Harold Fish's Legal Defense Fund and kicked in a few dollars this afternoon. I hope that he is released on bail, and acquitted if the prosecution chooses to retry him.

I'm not going to guess about whether the verdict and/or retrial are appropriate, as I wasn't on the jury and don't have all the facts.

It does seem to me that the lesson of value here is that the gun really needs to be the last resort, because there's a very good chance that firing your gun in public is going to result in litigation, jail time, and financial ruin. We pay lip service to all that, but then turn right around and put up stuff like the recent "Dog chased my kid" thread where the OP seemed to be almost looking forward to the prospect of using his gun for self defense.

Okay, I'm no legal expert but I figured I might as well chime in with a few observations:

Assuming Fish's story is accurate, Kuenzli charged him, even though he was armed and had his weapon in play. Kuenzli threatened to attack, harm, and kill Fish. Who does this, other than an irrationally angry and dangerous individual.

Seriously. Would any reasonable, right-thinking person go on a rampage and throw themselves into harms way like this? I don't think so.

I've had a few pets, but if someone shot at them, I don't think I would be so moved as to immediately attack the shooter. I would be inclined to take cover first and evaluate the situation from a safe distance.

Either Fish's story diverges from the truth, or Kuenzli was a psychopathic monster and Fish was truly in extreme danger. If there is significant documented violent behavior in Kuenzli's past, then Fish was in all probability right in pulling the trigger.

If there is significant documented violent behavior in Kuenzli's past, then Fish was in all probability right in pulling the trigger.

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From what I've read about the case there was significant documentation of violent behavior in Kuenzli's past that the jury was not allowed to see ...

Of course all his friends say he was simply a troubled angel ...

I'm pretty cheap but like RobNDenver I kicked in a couple bucks to his defense fund ... thanks for the link ...

Chester

Now that Janet has moved to DC she has bigger Fish to fry. Get it?

There's one thing I haven't seen mentioned yet.

But first - Comments have been made saying he shouldn't have taken the warning shot. Why not? He wasn't warning Kuenzli, he was trying to scare the dogs off. Stop the threat with the least amount of force. And it worked - they both ran off. That shot should have been credited to him as a good thing. He used restraint to end a threat with the least amount of force. A stereotypical nutjob gun nut (as some like to think we all are) wouldn't have fired a warning shot to scare the dogs. He would have hosed them both.

Now. To the thing I haven't seen mentioned yet.

What kind of logical, rational person, charges toward a person holding a gun. A gun that is known to be loaded (remember-it just went bang), and not for show only.

From Mr. Fish's point of view, Kuenzli gave him no other choice. Kuenzli was bigger, younger, charging aggresively from an uphill position, and his aggresive dogs were still around somewhere close. He couldn't go left, right, up or down. That Kuenzli had the screwdriver, or his past history, are irrelevant to Fish. All he knows is that he's got a big, apparently crazy man flying down the hill at him threatening to kill him.

How many of us, in the same position with the same facts, would do otherwise?