Reference no: EM131682155

Question: Was It Murder or Self-Defense?

The prosecution of Harold Fish for second-degree murder led to a change in Arizona's self-defense law, but the change came too late to keep the former Tolleson teacher out of prison. Fish, 62, is serving a ten-year sentence for killing a man on a hiking trail north of Payson five years ago this week. Fish fatally shot Grant Kuenzli, 43, saying the man and his dogs charged at him on a trail in the Coconino National Forest. "The choice was this: Use the firearm or let (Kuenzli) kill me or seriously hurt me," Fish said in a recent telephone interview from the Arizona State Prison Complex-Lewis near Buckeye. "I would do the same thing again today because I didn't have any choice. That gun saved my life." A Coconino County investigator believed that Fish acted in self-defense based on Fish's statements and limited evidence at the scene. Prosecutors saw it differently and charged him with second-degree murder. Fish was convicted in June 2006. He must serve until June 2016 unless the conviction is overturned.

The Arizona Court of Appeals reviewed Fish's appeal last July but has not ruled on it yet. Fish's case sparked debate about self-defense, drawing national attention from gun-rights advocates. The National Rifle Association contributed to Fish's defense. Unconvinced Jurors During the trial, jurors were not convinced that Fish was justified in shooting Kuenzli to protect himself. At the time of the shooting, Arizona's self-defense law required that a person claiming self-defense must prove that his or her actions were reasonable and justified. The law was changed in 2006 just before Fish's trial. It now puts the burden of proof on prosecutors to prove that shooters were not justified in using deadly force to protect themselves. Fish's attorney, Melvin McDonald, lobbied for that change in the Arizona Legislature before Fish's case went to trial. Then Governor Janet Napolitano vetoed two bills that would have made the change in the self-defense law retroactive to his case. "Classic" Self-Defense "The state finally got it right, but they didn't give it to me," Fish said. "It is a bitter, cruel irony." NRA spokesman Andrew Arulanandam said Wednesday that the shooting "was a classic case of a good person acting in self-defense."

The group is holding its national convention Friday through Sunday in Phoenix. Arulanandam said the prosecutor manipulated the legal system to exclude "the mental history of the attacker (Kuenzli)." Hike Ends in Tragedy Fish, a father of seven who taught English and Spanish at Tolleson High School for 27 years, was completing a daylong hike along a forested trail north of Strawberry on May 11, 2004, when he fired the fatal shots from a Kimber 10mm handgun that he was legally carrying. Kuenzli, unemployed and living out of his car, was camped at the trailhead with three dogs. Fish said he saw Kuenzli's car and was relieved that his ten-mile hike was nearly over. Just then, Kuenzli's dogs charged down the hill, barking and snarling at him. Single Warning Shot Fish said he yelled to Kuenzli to call off his dogs. He fired a warning shot into the ground. The dogs veered off the trail, Fish said. Suddenly, Fish said, Kuenzli charged down the hill, swinging his fists and threatening to kill him. Fish dropped Kuenzli with three shots to his chest. Kuenzli fell dead in the dirt at Fish's feet. Members of the grand jury later asked Fish why he had fired a warning shot at the dogs but did not do the same for Kuenzli. Fish said he did not have time and had been trained not to fire warning shots. Victim's Past at Issue Kuenzli was unarmed, but the defense argued that a screwdriver in his pocket could have been used as a weapon. Judge Mark Moran of Coconino County Superior Court did not allow that evidence into the trial.

The issue is part of Fish's appeal. McDonald also tried to introduce evidence about Kuenzli's mental health problems, a domestic violence incident, and previous heated encounters Kuenzli had had with police, court officials, and strangers. Moran excluded testimony about any prior confrontations. The legal theory was that Fish did not know of Kuenzli's mental stability when they squared off, so it was irrelevant. "Baloney!" Fish said. "If you look in the eyes of a man who wants to kill, you know he's not right. I'll never forget those eyes. This guy was as nutty as anyone I've ever seen." McDonald said he hopes the Arizona Court of Appeals will overturn Fish's conviction and set him free so he can return to his wife and family. Family Is Still Hopeful For three years, Debora Fish has been raising their seven children, ages 5 to 20, without her husband. She supports the family with his retirement income and her paycheck from a nursing home. "We're keeping our heads above water," she said, adding that the family is eager for a ruling that would overturn the conviction and free her husband without another expensive trial. Flagstaff attorneys, John Trebon and Lee Phillips, filed an appeal for Fish in April 2008. Coconino County Prosecutor Michael Lessler said he is awaiting the appellate court's decision, but he declined to speculate about the outcome. After the trial verdict nearly three years ago, Lessler said of the shooting that Fish "engaged in conduct that the law just can't accept."

Kuenzli's sister, Linda Almeter, said Fish was unhurt in the deadly encounter and did nothing to substantiate his self-defense claim. "He didn't have a button missing from his shirt," she said. "I think justice put him where he is, and he needs to stay there," she said. "God and I Are OK" Fish, a member of the Church of Jesus Christ of Latter-Day Saints, said he has had a lot of time to reflect about what happened five years ago. "God and I are OK with this," Fish said of the shooting. Did he pray for Kuenzli? "I wish I could say I did," Fish said, adding that it would be hypocritical for him to do that. As prisoner No. 208513, Fish spends his time reading and watching TV. His family visits every week. "It's not a happy place," he said of prison. "It's not meant to be an experience you want to repeat." "Innocent Citizen" Fish will be 69 years old when he is released unless Trebon and Phillips succeed in getting his conviction overturned sooner. People empathize with Fish because he went to prison for defending himself, Trebon said. "Here's an ordinary, innocent citizen in a life-anddeath situation," the attorney said. "He makes the most reasonable decision under the circumstances and then is second-guessed by people who didn't have to live through that situation."

Questions: 1. Summarize the story of Harold Fish's shooting Grant Kuenzli.

2. State the elements of the Arizona castle doctrine law.

3. Assume you're the prosecutor; present the case for murder.

4. Now, assume you're the defense attorney; present the case for self-defense.

5. In your opinion, should the new law be applied to Harold Fish, or should the governor pardon him? Defend your answer with specific points from the case.