Arizona man in self-defense case out of prison

[ericire12]

Held in prison for 3-years in self-defense shooting, he is now free on successful a appeal of his conviction.....



http://www.fox11az.com/news/topstories/stories/kmsb20090722jc-flagstaff-self-defense-case-prison.6663daa0.html

Arizona man in self-defense case out of prison

09:09 AM MST on Wednesday, July 22, 2009

By JULIE HIRSCHFELD DAVIS / AssociateBy FELICIA FONSECA / Associated Press Writer

FLAGSTAFF, Ariz. (AP) -- An Arizona man who spent nearly three years in prison for fatally shooting a fellow hiker near Payson - an act for which he claimed self-defense - was released from custody around noon Tuesday, his attorney said.

An order signed Tuesday morning by Coconino County Superior Court Judge Mark Moran allowed Harold Fish to be released from the Lewis prison in Buckeye, pending a new trial in the case.

Fish said he acted in self-defense when he shot Grant Kuenzli in May 2004 while hiking in the Coconino National Forest. Prosecutors said Fish overreacted and that self-defense was not justified.

A jury convicted the 62-year-old Fish of second-degree murder, and he was sentenced to 10 years in prison. But a state appeals court overturned the conviction last month and ordered a new trial, saying the judge's jury instructions failed to adequately describe the law of self-defense.

Prosecutors have said they do not plan to retry Fish. They cited a new law that shifts the burden of proof in self-defense claim cases from the defendant to the prosecutor. Gun-rights supporters, who said Fish's conviction represented a threat to their right to protect themselves, prompted the change in the law.

Fish's wife and six of their seven children greeted him at the prison Tuesday, and the family returned home to Mesa, where they spent the afternoon washing dishes and cleaning house. They're planning to have a big breakfast Wednesday, and then it's on to yard work before a weekend of camping and next week's painting jobs, Fish said.

"They're really getting used to Dad coming home," the retired school teacher said in a telephone interview. "It's been very humbling. It's a lot like going to your own funeral. I'm amazed. I never realized so many people cared about me until this happened."

But Fish knows his release from prison doesn't guarantee he'll remain free.

A spokesman for Attorney General Terry Goddard, Steve Wilson, said the office will file a petition with the state Supreme Court to review the lower court's decision by the end of the month. The deadline is Aug. 5.

Wilson said the office disagrees with the appellate court's reasoning that the trial judge may have erred in barring evidence of Kuenzli's prior acts of violence related to dogs.

The constitutionality of the new self-defense law also could be challenged. It doesn't go into effect until September but applies retroactively to Fish's case.

A challenge to the new law or appeal could take months or years to play out.

"It's up in the air," said Lee Phillips, who along with John Trebon represented Fish. "I'm hopeful that the state will be persuaded once Mr. Fish is back home with his family that enough is enough, and they will just let this go."

Michael Lessler, Coconino County chief deputy attorney, said he recently spoke with Kuenzli's sister about Fish's release. While she's not thrilled, Lessler said Linda Almeter understands the prosecution's position not to retry Fish and will respect any decision that comes down in the case.

Fish told authorities he was hiking in the forest near Payson when two dogs belonging to Kuenzli ran down a hill and threatened him. Fish said he fired a warning shot at the animals. Kuenzli then became enraged and threatened Fish, who warned he would shoot. Fish then fired three rounds and killed Kuenzli.

Fish believes the appellate court decision that overturned his conviction is strong enough to withstand a challenge, but his experience has left him with little faith in the justice system.

"There's a better way, especially in this environment, to spend the public's money than to incarcerate a public school teacher who was just trying to defend himself," he said.

If nothing more, he figures he has at least three months to spend with his family before the legal issues are settled or start up again. Meanwhile, his children are eager to go camping and fishing and there's a lot of work to be done around the house, he said.

"If I were to return to prison, it would break their hearts, really," he said.

[TAB]

Just a little FYI  SD is a affirmative defense.  Basicly you are pleading guilty, and trying to use a execption to the law to get off.

Just something to think about.

[tombogan03884]

Depends on the state TAB, In Az the burden of proof is on the state to prove you acted wrong, not on you to prove you acted right.
That's why every one who carries needs to know the laws in THEIR state.

[TAB]

Tom its like that in all states. its up to the state to prove that you did not actually defend yourself.

[MikeBjerum]

TAB,

He was charged with Second Degree Murder.  You do not plead guilty to murder with an exception.  You plead not guilty to second degree murder. 

If he were being charged with assault he could plead no contest, and then he would use the exception of self defense.

[Sponsor]

[1911 Junkie]

I must say that, laws about self defense are in real bad situation. they must have some thinking about the defender. we do all thing to live, the main thing is self defense, it is no crime. I feel really sorry about our self defense laws after reading this story.
He had to go to the jail for defending his own lime .. what a society [Sorry about bad English]

You guys are so gullible. First post to a thread that is 6 months old. I smell spam.

Don't click the link. 

[Solus]

Tom its like that in all states. its up to the state to prove that you did not actually defend yourself.

That is not correct, TAB.

Ohio just last year passed legislation that the prosecution was required to prove it was not self defense rather than the defendant being required to prove it was self defense.

Ohio also passed legislation that precludes you from being sued in a civil suit if, in the criminal case,. you were found not guilty.

The state also passed "Castle Doctrine" legislation. 

One of the prosecution attorney's for one of the counties has made the statement that anyone who tries to rob a place with a gun has given up his right to not be shot...and the PA has not pressed charges even when the robber appeared to be fleeing the scene and was shot.

I am starting to like this state.

[TAB]

That is not correct, TAB.

Ohio just last year passed legislation that the prosecution was required to prove it was not self defense rather than the defendant being required to prove it was self defense.
Ohio also passed legislation that precludes you from being sued in a civil suit if, in the criminal case,. you were found not guilty.

The state also passed "Castle Doctrine" legislation. 

One of the prosecution attorney's for one of the counties has made the statement that anyone who tries to rob a place with a gun has given up his right to not be shot...and the PA has not pressed charges even when the robber appeared to be fleeing the scene and was shot.

I am starting to like this state.

thats what I said...  its up to the state to prove otherwise.

[crusader rabbit]

Florida has had the "Castle" Doctrine for some time, but a little over a year ago, Florida added a "stand your ground" clause.  Now, you have no duty to flee in the presence of a threat, and this provision extends the Castle Doctrine to include your car.  If you are in genuine fear for your life, you may use deadly force.  It gets a little troublesome since YOU are the only one who actually knows if you are in fear for your life.  But, it has ended a bunch of stupid prosecutions and people are more polite when they drive.

[Solus]

thats what I said...  its up to the state to prove otherwise.

TAB, Ohio just passed legislation requiring the state to prove it was not self defense just last year.  Before then it was the defendants responsibility to prove it was self defense.

Not all states have the legislation in place to make the prosecution prove it was not self defense, so your statement that ALL states are required to do so is incrorect.