If you want to use legal terms, I suggest you use a legal dictionary:
http://legal-dictionary.thefreedictionary.com/Common+law
"common law n. the traditional unwritten law of England, based on custom and usage which developed over a thousand years before the founding of the United States. The best of the pre-Saxon compendiums of the Common Law was reportedly written by a woman, Queen Martia, wife of a Briton king of a small English kingdom. Together with a book on the "law of the monarchy" by a Duke of Cornwall, Queen Martia's work was translated into the emerging English language by King Alfred (849-899 A.D.). When William the Conqueror arrived in 1066, he combined the best of this Anglo-Saxon law with Norman law, which resulted in the English Common Law, much of which was by custom and precedent rather than by written code. By the 14th Century legal decisions and commentaries on the common law began providing precedents for the courts and lawyers to follow. It did not include the so-called law of equity (chancery) which came from the royal power to order or prohibit specific acts. The common law became the basic law of most states due to the Commentaries on the Laws of England, completed by Sir William Blackstone in 1769, which became every American lawyer's bible. Today almost all common law has been enacted into statutes with modern variations by all the states except Louisiana which is still influenced by the Napoleonic Code. In some states the principles of common law are so basic they are applied without reference to statute."
It's considered malpractice to fail to research the statutory law of the state the case is being tried in, and just apply common law.
It also makes a state specific case discussion futile, in less you know that states law. In this case, since the law changed during the trial time, it is a critical issue, and, the judge failed his duty.
Common law principals are what are taught in law school, with some case law sprinkled in, mainly Supreme Court cases, that alter the laws path.
During that experience, it is made crystal clear that states put penal law into statute, or codes, and they have as many variations as there are states, on the same issue.
Fish's trial made the state change their laws:
http://www.haroldfishdefense.org/
The issues that Fish's attorney's considered basis for a new trial:
I. BURDEN OF PROOF improperly stated to the jury
II. EXCLUSION OF REFERENCE TO THE SCREWDRIVER
The judge's ruling on what evidence to allow, and not allow in this trial are all pretty shady.
Intresting statement from Points and Authorities:
"The importance of the screwdriver was not a fact lost on the state. If it was so insignificant, why did the state send the screwdriver to the state crime lab for forensic investigation and analysis? The Court's ruling took from the jury critical evidence which denied the jury any ability of determining what weight, if any, to give to the screwdriver. By allowing the State to deceive the jury into believing that decedent Kuenzli was unarmed, their verdict was predicated upon a misleading and deceptive state of facts.
This ruling denied to defendant Fish any ability to provide a "complete defense." It prevented him from showing the decedent's capability of inflicting serious physical injury.
It created an environment where the jury falsely believed that Grant Kuenzli was unarmed, allowing the prosecutor to argue that one of the two combatants had a powerful 10 mm gun loaded with hollow point bullets while the other had nothing.(this is the view 918v is trying to sell. the facts are clearly different, and this position would not hold up to a new trial, with all evidence properly presented.) Under the Court’s rationale, the State would have been allowed to deceive the grand jury into believing that the decedent was unarmed while carrying a loaded .45 caliber pistol concealed in his back pocket based solely upon the fact that the concealed loaded gun could not be seen by Mr. Fish.
The day after the jury verdict, the jury foreman contacted undersigned counsel expressing shock that the decedent was armed with a screwdriver. He indicated that the jury was not aware of that fact and opined that such information may have had a significant impact on their deliberations. The error was critical and fundamental. In support of this point, the defendant incorporates by reference all prior memoranda filed with the Court on the issue of the screwdriver, together with arguments made by the defense at the time of the Court's ruling, are incorporated with this motion by reference. "
III. PROSECUTORIAL MISCONDUCT The state has an duty to persue ALL evidence, and to present exculpatory evidence when they find it. The defense is not so obligated to the state. The reason for this is what exactly happened in this trial. The state has a home court advantage,
if you would, because they have a full staff, and are not limited by any restrictions, and, they have the advantage of being LEO in their investigations. There is nothing so bad as a detective, or DA that fails
in his duty to the people of his state, which is to present cases with ALL the evidence they discover, and, to present exculpatory evidence to the defense.
IV. FAILURE TO ADMIT TESTIMONY OF DR. STEVEN PITT ON DECEDENT'S MENTAL HEALTH HISTORY AND FAILURE TO ADMIT PSYCHIATRIC MENTAL HEALTH RECORDS
"The Court committed fundamental error by excluding both the psychiatric records of Southwest Behavioral Health Center as evidence in the case, by precluding the defense from having access to the Banner Health Records following Grant Kuenzli's attempted suicide, and by precluding Dr. Steven Pitt from giving opinions based (in part) upon contents of the Southwest Behavior files, including opinions relating to:
1. Grant Kuenzli's post traumatic stress disorder,
2. Decedent's prior documented history of aggression and violence and how those earlier acts demonstrated to a reasonable medical probability that Harold Fish's life was in danger when Grant Kuenzli charged him on May 11, 2004.
3. The psychological impact that a traumatic event would have on any victim like Harold Fish when confronted with an unforeseen, terrifying series of events with no opportunity for reflection.
There is no factual dispute regarding the decedent's prior mental health history. Grant Kuenzli had been diagnosed as suffering from post traumatic stress disorder. The date before his death, he had consulted with a mental health advisor at Southwest Behavioral Health Center. The decedent had described his fears about living in the National Forest. This information was highly relevant to the jury's consideration of Mr. Kuenzli's mental stability and was directly related to the actual danger presented to Harold Fish by Grant Kuenzli.
In the preceding two years, the decedent had attempted suicide not once, but twice"
So, we have a mentally unhinged rapist and kidnapper here, and none of that was allowed in.
V. FAILURE TO ADMIT SPECIFIC ACTS EVIDENCE FROM THE TEN "ANTI-KUENZLI" CHARACTER WITNESSES
The record before this Court is irrefutable regarding the troubled violent history of Grant Kuenzli. Witness after witness, in pretrial motions, and under oath, provided this Court with "specific act" evidence about the character for violence of Grant Kuenzli. The decedent raped and kidnapped [Rape Victim], then threatened her son with death as well as her mother and sister while hold [Rape Victim] and her son hostage in their home. The decedent, without any warning, assaulted and strangled [strangulation victim] without provocation and without warning. [strangulation victim]'s offense was simply delivering self help materials to [Rape Victim]. The decedent was involved in numerous violent or aggressive encounters with former police officers Steve Corich, John Boylan, and Lynn Bray at Mesa Community College. They were so troubled by these actions that they contacted defense counsel after reading news accounts of Kuenzli's death. The decedent had two aggressive confrontations with Placido Garcia who, through affidavit, described his fears to the court. Stephanie Quincy was so terrified of the defendant because of bizarre and threatening behavior over the telephone that she would not meet with him face to face unless he had cleared court security. Judge Clayton Hamblin had a twenty minute encounter in his courtroom that so terrified him that he warned court staff to be beware of Kuenzli and to be cautious of him. The judge feared that the decedent might shoot him through a window connected to his courtroom. Ernie Encinas terminated the decedent from employment at the Gilbert Fire Marshall's office because of repeated violent outbursts with Mr. Encinas, with fellow employees, and with customers of the town. The fear of Kuenzli was so prevalent that the Fire Marshall changed all of their locks at all locations at the request of Kuenzli’s fellow employees because of fears that Mr. Kuenzli would return and inflict harm. A mere two weeks before his death, decedent charged Steve James with James observing the same spastic arm movements, the terrifying anger and verbiage, and the irrational behavior that was seen on May 11, 2004. These specific acts were critical to show, on occasion after occasion, that rational people could not reason with Grant Kuenzli, that he had character patterns of uncontrolled violent behavior, and that Kuenzli inflicted terror in the minds and hearts of each of these witnesses because of his unpredictable volatility and patterns of violence and aggression. "
VI. CHARACTER EVIDENCE OF HANK AND SHEEBA
It appears that the dog Hank was very dangerous, and that evidence was not entered. It had attacked a Gila County Sheriff, and generally terrified the owners neighbors.
VII. THE JURY CONSIDERED AND DISCUSSED INFORMATION AND EVIDENCE WHICH CONSTITUTED JURY MISCONDUCT
VIII. LESSER INCLUDED OFFENSE INSTRUCTION
IX. ADDITIONAL INSTRUCTION ERROR
X. THE VERDICT IS CONTRARY TO THE EVIDENCE
The only mention of caliber was by his own attorney, the DA, and one of the jury members said it bothered her.
So, Fish correctly preceived, under the pressure of violent dangerous dogs attacking, that the guy attacking him was very dangerous, with a suicidal
unstable mental state, and turns out in fact to be a rapist, and kidnapper, along with a violent history.
With a proper trial, and this evidence admitted, not to mention the publicity that would make people aware of all this, there is a better chance of snow in June in Arizona then another conviction.
I wouldn't be concerned about such stuff for your gun, since the chances you will have to use it are near non-existent.
I would be concerned with expensive ammunition, hard to hold on to brass,
a lack of weapons for the caliber, and, the expense of setting up such guns
so you can reuse your brass, if you reload.
That said, if you are a millionaire, none of those things are a factor. Buy the 10mm and be happy. I would rather have .45 Super, and do, which is nearly the same as the 10MM, but with a bigger bullet.
