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VA9mm
May 18, 2009, 12:38 PM
I saw this on Investigation Discovery the other day and it was quite alarming to someone that carry's. A lot was made of of him carrying a "powerfull" 10mm handgun that was more powerful than what a lot of police officers use. Then they were talking to a juror who said he had hollowpoints and they were designed to kill etc and that was a major sticking point for her. Is ball ammunition designed to tickle? Scary stuff... The man he shot had no weapon but was aggressively coming at him. You can read about the case. http://www.msnbc.msn.com/id/15199221

This man was given 10yrs in prison and convicted of 2nd degree murder. Just wanted to kick it around here sorry if it's been discussed but, I saw it and tought it would be a good topic. Now they have since changed the law in Arizona where the state has the burden of proof in a self defense case. It sure does make you wonder though.

hogdogs
May 18, 2009, 12:42 PM
Actually a weapon (screw driver) was found in the dead man's pocket IIRC. And he wasn't a quad amputee so he had 4 weapons attached to the torso.
Brent

Tennessee Gentleman
May 18, 2009, 01:01 PM
This has been covered a lot on TFL in older threads. IMO the Fish story is, well, fishy. Major problems when you shoot an unmarmed man and Kuenzli was unarmed at least as far as Fish could tell. From what I have read the jury thought he overreacted and since there were no witnesses to back it up he went to jail. IMO his mistake was firing at the dogs when he had a walking stick that he could have used to fend them off. Also, I don't think there was the disparity of force necessary to justify shooting the guy. My .02.

Deerhunter
May 18, 2009, 02:03 PM
My $0.02. What if the guy runs up and attacks you. Now he throws you to the ground because you were afraid to pull your pistol and shoot. So now you are wrestling on the ground and he gets a hold of your pistol and shoots you. What good did it do to carry it?

Every had a dog or two that you didn't know come running at you? It sucks, had it happen a few times in Kosovo a few times at night. Not what you want to deal with. I probably would have shot the dogs if it was me. You have two coming at you so you have to shoot one with enough time to get the other before it gets to you.

I am sure there was a lot more information during the trial but you get uninformed people on a jury and it could go either way. 10mm hallow points, sounds like a good option for carry out in the wilderness to me.

grymster2007
May 18, 2009, 02:09 PM
IMO the Fish story is, well, fishy. Sure, it's a little fishy, but I'm thinking that if Fish was itching to kill, he'd have shot one or both of the dogs first. Having not heard what the jury did, it's hard make a call, but on the surface it seems Fish had pretty good reason to fear for his life.

Tennessee Gentleman
May 18, 2009, 02:23 PM
The problem is Kuenzli never laid a hand on Fish and he was unarmed. Fish claimed he was attacked but we don't know that and only have his word. Furthermore there was not (to my reading) a great disparity of force between the two. Seems to me like a sure formula for prison time if you are carrying and shoot someone with that set of circumtances.

As for Kuenzli taking the gun away, IIRC Fish kept it in his pack and Kuenzli would never have known it was there so no I don't think he would have used it on Fish. In Tennessee, even if someone punches you in the nose you can't automatically shoot them and claim SD. You'll do time.

Sure I have had dogs charge me. Big ones too and not the mutts that Kuenzli had. Warded them off with a swift kick and yelling. These were not trained attack dogs either. Just pound mutts. You are forgetting that Fish also had a walking stick which he threw away to grab his gun. Could I at 50 something ward off two pound mutts with a 5 to 6' walking stick? Heck yeah.

I'm thinking Fish, who appeared to be a rather arrogant fellow got mad, shot at the dogs and then got ****** when Kuenzli came up to him and shot him. I think he overreacted and now a man lost his life.

I think justice was done tragic as it now seems. The facts I have read do not support a clear cut case of SD.

grymster2007
May 18, 2009, 02:35 PM
Fish claimed he was attacked but we don't know that and only have his word. And maybe if Fish had been a little more laid back, he'd be the dead guy. Then what? Send Kuenzli to prison?

Furthermore there was not (to my reading) a great disparity of force between the two. On what logic do you base this?

The facts I have read do not support a clear cut case of SD. Nor do they support anything else.

And.... one more... being arrogant is grounds to prohibit one from defending one's self?

Tennessee Gentleman
May 18, 2009, 05:22 PM
And maybe if Fish had been a little more laid back, he'd be the dead guy.

Evidence didn't show that or Fish would have been acquitted. One could just as easily say that if Fish "had been a little more laid back" NOBODY would be dead.

On what logic do you base this?

Not logic, facts. Fish was a very fit 57 year old man who did a lot of hiking. Kuenzli was younger but not too much larger than Fish. I have seen pictures of them both and reading the doucments on the web do not show any great physical disparity of force. You can check it out for yourself if you wish.

Nor do they support anything else.

Except Fish killed an unarmed man. So what do you do? Call it even and let Fish go on his word alone? No justice there.

And.... one more... being arrogant is grounds to prohibit one from defending one's self?

No, but it is a dangerous mindset for someone who carries a gun. In Fish's case it is downright confining.

David Armstrong
May 18, 2009, 06:04 PM
One of the best cases in recent years to refute all that "it doesn't matter what you carry" stuff that pops up from those that don't keep up with the legal side of the issues.

hogdogs
May 18, 2009, 07:32 PM
Ya'll need to come up with a different term... Un-firearmed is better! so a man without an implement that beats a woman or other man to death with fists is "un armed"? Lack of a steel item in hand does not unarmed make!
Brent

Tom Servo
May 18, 2009, 07:58 PM
One of the best cases in recent years to refute all that "it doesn't matter what you carry" stuff that pops up from those that don't keep up with the legal side of the issues.
I don't know that it was really about that. Fish's choice of weapon was mentioned, but IIRC, it went towards the prosecution's opinion of Mr. Fish's character.

The prosecution did their best to portray Mr. Fish as a self-righteous moral absolutist with a chip on his shoulder. The fact that he was carrying a more-powerful-than-usual handgun was used as ammunition for that argument. The rejection of the self-defense defense (erm...) was based on many factors, including self-contradictory statements by Mr. Fish, and the delay between when he shot Mr. Kuenzli and when he reported it.

Of course, only Mr. Fish knows what happened that morning, and we can only speculate. The problem is, the jury was in that same position, with a very zealous prosecutor steering them as best he could.

Tennessee Gentleman
May 18, 2009, 10:57 PM
I don't know that it was really about that. Fish's choice of weapon was mentioned,

Tom, what I read from some jurors is that the gun and the ammo really didn't make that much difference. The facts led them to believe that Fish overreacted.

Bottomline, if you shoot an unarmed person where there is not a pretty big disparity of force between him and you then prepare for doing the long course as we used to say in another life.

Ya'll need to come up with a different term... Un-firearmed is better! so a man without an implement that beats a woman or other man to death with fists is "un armed"? Lack of a steel item in hand does not unarmed make!

The law is pretty precise for a reason Brent. In the case you mention, disparity of force is pretty easy to show and the women would be justified in shooting the "man" who was beating her. Unless she was Sheena, Queen of the Jungle;)

Double Naught Spy
May 18, 2009, 11:46 PM
I think the biggest problems with the Fish case were that Fish's account didn't match the forensic evidence. That is what got him into trouble because Fish talked when he should not have talked. He cooperated fully, without his lawyer.

As for the caliber issue, it wasn't the caliber that convicted him. A couple of the jurors didn't like the caliber and hollowpoint aspect, no doubt, but that was more after the aspect that his story didn't match the evidence, particularly the timing (when Fish reported the event occurred and when auditory witnesses heard the shots) and lack of threat issues as I recall.

It could be argued that caliber and hollowpoints were a sticking point, but so too was the aspect that as a scout leader trained in first aid, Fish didn't make any attempt at first aid other than putting his pack under the guy's head. That was bothersome to a juror.

Note that the juror's also noted that the believed that the threat was not advancing at the time he was shot.

Larson: So this idea that he may have been stopped, that these may have been defensive wounds, played huge?

Elliot: Absolutely.

Nelson: It was major.

It wasn't that the caliber or bullet type were huge, but that the jurors believed the shootee no longer posed a threat when he was shot.

Of course being gun people, we tend to focus on the fact that caliber and bullet type are mentioned, and they are, but so too are many other factors. Then again if you think the ammo issue is significant, then you have to note that Fish's lawyer did just about nothing to discount the prosecution's categorization of the ammo. Ammo will nearly always be an issue. The prosecution will bring it up regardless of the caliber. All calibers can be categorized in a negative light, but at the same time, they can be readily defended when they are commercial ammo.

So the juror was bothered by hollowpoints. She would have been bothered had Fish used .38 spl, 9mm, .45 acp, or any other hollowpoint caliber.

grymster2007
May 19, 2009, 09:49 AM
Well Tennessee, we’re probably not going to agree on a lot here, so I’ll make one more point and let it go. You say the two men were roughly the same size and conclude that there was force parity. While I might be convinced of a force disparity between Shaquille O'Neal and maybe someone like Giada De Laurentiis, generally parity in size is a poor indicator of parity in force.

BTW: As a young man, I actually researched some of this and discovered that my 5’10” 220 lb. bulk was no match for some 5’4” 130 lb. dynamos, regardless how thoroughly I pummeled their fists with my face. :)

Tennessee Gentleman
May 19, 2009, 09:55 AM
Don't disagree with you on the force disparity but here is the deal. If you shoot an unarmed man your attorney had better be able to show force disparity between your attacker and you or you will be doing time. I learned at my CCW class that here in Tennessee just because someone punches you in the nose does not mean you can kill them. Anyway, as was posted by Double Naught there was a question whether the guy stopped before Fish shot him. I think Fish got what he deserved but it is tragic nonetheless.

OldMarksman
May 19, 2009, 12:00 PM
Fish claimed he was attacked but we don't know that and only have his word.

Major lesson for everyone in that. In a self defense shooting, it's up to the defendant to produce evidence showing that his actions were justified. Guess Fish couldn't do that.

moga
May 19, 2009, 12:49 PM
One of the best cases in recent years to refute all that "it doesn't matter what you carry" stuff that pops up from those that don't keep up with the legal side of the issues.

This case is the exception and not the rule. Which is why there are only a few of such cases to support such an assertion outside of the likes of NJ, NY, and CA; places where folks make a career out of making a hard case against lawful self defense. Further, the over-zealous prosecutor (Lessler) was widely regarded as ambitious and an anti-gunner to boot. He introduced into evidence the fact that the NRA was partially supporting Fish's defense. How is that relevant? Further, when he couldn't get a grand jury to indict Fish on murder, he went ahead without one. What does that tell you? He used the Fish case as a stepping stone for his personal ambitions. This guy had plans and he wasn't about to let a high profile case slip by without taking the opportunity to make a name for himself. He was a senior staff attorney then. I bet you know who just made Chief Deputy Attorney in the Coconino County DA's office. Did you also know that the year he prosecuted Fish that Lessler was given a lifetime achievement award by the Arizona Prosecuting Attorneys Advisory Council? That's a hell of a career advancement in just one year.

Besides, Kuenzli would have been just as dead if killed by a 17 HMR or a 22LR.

David Armstrong
May 19, 2009, 01:28 PM
I don't know that it was really about that. Fish's choice of weapon was mentioned, but IIRC, it went towards the prosecution's opinion of Mr. Fish's character.
Which becomes a factor in deciding guilt. Is it a big factor? Maybe, maybe not. But it can be and often is a factor, a factor that is easy to avoid instead of pretending it won't matter.

This case is the exception and not the rule. Which is why there are only a few of such cases to support such an assertion outside of the likes of NJ, NY, and CA; places where folks make a career out of making a hard case against lawful self defense.
It really isn't an exception. Where it becomes an exception is the attention it got. Most cases don't get near the attention this one did, but many cases involve questions about the gun and ammo used in the shooting. usually it is handled easily, but the more out of the norm the more troublesome the issue can be.

moga
May 19, 2009, 01:32 PM
Citations?

David Armstrong
May 19, 2009, 01:36 PM
For what? Every case where they have discussed the caliber and gun used in a shooting? Find any case where there is a shooting. The gun and the ammo will have been discussed during the trial.

Tennessee Gentleman
May 19, 2009, 01:38 PM
So, is the point we are trying to make here is that if you use certain types of guns and calibers it can weaken your claim of self defense? If the facts support the SD case will it matter that you shot him with a .22 or a .45?:confused:

OldMarksman
May 19, 2009, 01:47 PM
Further, the over-zealous prosecutor (Lessler) was widely regarded as ambitious .... ... He used the Fish case as a stepping stone for his personal ambitions. This guy had plans and he wasn't about to let a high profile case slip by without taking the opportunity to make a name for himself. He was a senior staff attorney then. I bet you know who just made Chief Deputy Attorney in the Coconino County DA's office.

Do not think for one single second that you have described an exception to the norm.

That's how prosecutors get ahead. It's the way the system works everywhere in the country. Assistant United States Attorneys make names for themselves by successfully prosecuting high profile crimes and get high paying positions in major law firms. Several are now in very hot water due to their conduct regarding the prosecution of Ted Stevens. District Attorneys often aspire to be State Attorneys General or higher. And even if ambition did not play a role, in our system it is the job of the prosecutor to convict the defendant if he can.

Anyone on his way to trial court as a defendant had better understand that going in. His attorney already does.

moga
May 19, 2009, 01:53 PM
Old -- I know that the way to advance in any career is by being a hot shot. Yet how many times have you ever heard of a DA failing to get a grand jury indictment and still pursuing a murder case against the accused? I'm fairly certain that it is NOT the norm in American jurisprudence for the Office of the District Attorney to disregard the findings of a convened grand jury and press ahead with an indictment anyway. That sounds less like pursuing justice and a lot more like advancing an agenda. Too much of that usually finds a DA in the same boat as Mike Nifong.

moga
May 19, 2009, 02:02 PM
I think that its pretty obvious that any criminal case against a person accused of shooting another person will involve an analysis firearms and ammo.

This case went far and away past this level of involvement of gun/ammo in the Fish case. Lessler made Fish out to be an vigilante assassin of sorts just itching to unload on some unsuspecting Joe because he was carrying a 10mm with JHP rounds. My comment that this case is not the rule but an exception was made in reference to this observation. There are but a few places where so much emphasis is put on the weapon and ammo choice so as to color the jury's opinion of the defendant. It's like character assassination.

I'd be interested in seeing other examples of this phenomena. When I asked for citations, this is what I was asking for.

Double Naught Spy
May 20, 2009, 07:32 AM
Do not think for one single second that you have described an exception to the norm.

That's how prosecutors get ahead. It's the way the system works everywhere in the country. Assistant United States Attorneys make names for themselves by successfully prosecuting high profile crimes and get high paying positions in major law firms. Several are now in very hot water due to their conduct regarding the prosecution of Ted Stevens. District Attorneys often aspire to be State Attorneys General or higher. And even if ambition did not play a role, in our system it is the job of the prosecutor to convict the defendant if he can.

And I don't see why this is surprising to any of us. The prosecution isn't going to try to make the defendant sound like a good guy. And of course they want to make a name for themselves. Successful prosecution of cases goes towards the betterment of their careers. Similarly, successful defense of cases by the Defense goes toward the betterment of those lawyers' careers.

Would anyone want the prosecution in Liberty County, Texas portraying the Muhs couple as anything but overly zealous and ready to shoot idiots or portrayed as loving parents who were only trying to protect their lands from the evil people driving along the road?

The gun will be discussed. The caliber will be discussed. The ammo will be discussed. It is part of the evidence of the case just like the fact that Fish was a scoutmaster with first aid training that he failed to render, although he spent a fair amount of time with the shootee (by his own admission) without rendering aid along with the aspect that it appeared he shot the other guy while he wasn't a threat. As noted by two of the jurors, the fact that he shot the guy while he wasn't being a threat (not advancing) was HUGE in their decision to convict.

Do we really think it was caliber and ammo that convicted Fish or the fact that the juror believed he shot a person who wasn't a threat?

zukiphile
May 20, 2009, 08:48 AM
Erich wrote the following summary of this issue some months ago.

The topic Erich doesn't spend much time on is the degree to which juries are a gamble. An influential juror can fasten on a single irrelevent detail, ignore the substance of a case, and provide a decision that literally has nothing to do with the case. (The other side of that coin is that a jury can sometimes look past lots of the mind-numbing detail that fascinates attorneys and judges, and come to a sort of common sense conclusion. Which you think a jury did in a specific instance usually depends on whether you prevailed.)

Erich's summary:

Former prosecutor, longtime defense lawyer here.

First of all, I'm not able to see your photo on this machine and thus am commenting in general and not on your specific weapon.

It depends on who catches the case. Some cops are offended by "tactical" weapons, as are some prosecutors and grand jurors. The attitude of the cops and prosecutors involved in reviewing your shooting will certainly be reflected in the treatment that your case receives. Your appearance, the part of town in which you live, your connection to the person who was shot, the weapon that you used, your profession, your employment status, your attitude, and all the information about the person shot - these are all things that will be in the background when the state actors review your case and decide how to handle it. So will the overall political climate of your locale - this will also affect how the grand jury views your case after the shooting.

Your use of a "tactical" gun is not likely to affect a defensive shooting case in which Charles Manson bursts into your five-year-old's birthday party in the middle of the afternoon wielding an RPG and singing "Helter Skelter." But, in my considerable experience working on homicide cases, things are rarely so clear. Like Mas Ayoob advises regarding the use of handloads in defensive weapons, it behooves one to think before adding in another potentially detrimental variable.



I own EBR-type things, but my "house rifle" is a lovely walnut-stocked Navy Arms 92 short rifle levergun . . . a "cowboy gun." Concern over appearances played a part in my selecting that gun for that role, even though I'm in a fairly gun-friendly area and defensive shootings with AK-47s have been no-billed by local grand juries. You may come to a different conclusion, but you are wise to consider this issue in making your determination of what's right for you.

As far as "how to deal with the issue in a hypothetical homicide trial"? No one can answer that, as the relevant variables in play aren't yet before us. You are wise to have the ability to coherently and reasonably explain the need for any additions to your base gear and your rationale for selecting that base gear. You would be wise to be prepared with the contact information for a good criminal defense attorney (how to find this has been discussed here many times) in the event that - God forbid - you would ever need one.

OldMarksman
May 20, 2009, 08:56 AM
Yet how many times have you ever heard of a DA failing to get a grand jury indictment and still pursuing a murder case against the accused? I'm fairly certain that it is NOT the norm in American jurisprudence for the Office of the District Attorney to disregard the findings of a convened grand jury and press ahead with an indictment anyway.

???

A Grand Jury returned an indictment of second degree murder.

That sounds less like pursuing justice and a lot more like advancing an agenda. Too much of that usually finds a DA in the same boat as Mike Nifong.

Do not confuse prosecutorial zeal with wrong doing such as withholding material information.

Lessler made Fish out to be an vigilante assassin of sorts just itching to unload on some unsuspecting Joe because he was carrying a 10mm with JHP rounds.

If you still believe that that is an exception and not the rule, you are not very familiar with the trial process. Prosecutors routinely paint decent citizens who have, through poor judgment, ignorance, or simple oversight, run afoul of a tax filing or accounting classification issue in public financial reporting as evil, greedy, dishonest, people having deliberately committed fraud. And busy people whose recollection five years after the fact differs from or omits a very minor detail somewhere in four thousand pounds of documents are made out to be completely dishonest liars.

That's the way the system works.

And the Muh's defense team will likely portray them as responsible, upstanding, decent citizens of the republic who somehow misjudged what they reasonably thought to be a terrifying invasion by dangerous persons.

If you are ever on trial, you can expect to be described in a manner that you would never expect, and it will likely change the way you are seen by a lot of people.

The thing to take away from the Fish case, in my opinion, is that absent the existence of favorable evidence or corroborating testimony or both, what is seen by the "good guy" as a "good shoot" (LEO jargon, I think, and I do not like it for civilian application) may not be seen that way by investigating officers, the charging authority, the county prosecutor, a grand jury, or a trial court jury, or perhaps all of the foregoing.

Think about it. One citizen shoots another. That fact is not in question. He then contends that he reasonably believed that he was in imminent danger of death or serious bodily injury, and that the use of deadly force was immediately necessary as his only means of protecting himself.

Won't every killer be expected to make that claim? Why should he be believed? Well, under the system, it is his duty to provide evidence showing that his actions were justified under the law. His version of what happened is unlikely to suffice.

That's why Mas Ayoob recommends being the first to call the police, pointing out the evidence and the witnesses, and making no statements at the time.

And if there are no witnesses? Well, it just might be--probably will be--best to run, not walk, from trouble, even if no retreat is legally required in the jurisdiction at hand.

David Armstrong
May 20, 2009, 11:03 AM
There are but a few places where so much emphasis is put on the weapon and ammo choice so as to color the jury's opinion of the defendant. It's like character assassination.
I think you are misunderstanding the issue. It doesn't have to be much emphasis. Some trials are won or lost on one or two big issues. Many more are one or lost on an accumulation of little issues, all of which color the jury's opinion of the defendant. Attorny's will often tell their clients who to dress, what color tie to wear, how to cut their hair, whether to wear glasses or not, coach them on when to smile, and so on. All little things, but things that can make a difference in the outcome of the trial, especially a civil trial. The caliber, the type of ammo, the gun used, things like that will never be the item that gets a conviction. Can they be a part of the process? You bet, and they are a part that is easy to control to your advantage instead of disadvantage with no real loss of safety.

Jim March
May 21, 2009, 01:21 PM
The HUGE set of questions Fish and his attorneys missed, that could have been aimed at any cop, is:

Q: So you're saying that the 700ft/lbs of energy in Mr. Fish's 10mm handgun was excessive?

A: Yes.

Q: And your department would never use that sort of excessive force?

A: No.

Q: Exactly how much energy is in each round of the 12ga shotgun shells in each of your cruisers (answer: well over 1,400ft/lbs) or the .223s your SWAT department has (even more, esp. if they have 3-rd burst!), or...etc.

In other words, when the cops said the 10mm was "outside the norm" for police use, they were flat-out lying and should have been caught at it.

The fact is, the FBI *tried* to go to the 10mm in the early 80s and it was too much gun for some officers, causing them to back down to the horsepower level now known as the 40S&W.

I live in Pima County AZ where Mr. Fish was prosecuted. I carry a 357 daily, loaded with rounds approaching 800ft/lbs energy...

Tennessee Gentleman
May 21, 2009, 04:44 PM
As noted before. I don't think Mr. Fish was convicted based on the gun or ammunition he used. It might have been a factor (as it could be in any case)but based on what I have read from the jurors that was not the main reason they convicted him.

MrNiceGuy
May 21, 2009, 05:24 PM
And maybe if Fish had been a little more laid back, he'd be the dead guy. Then what? Send Kuenzli to prison?

no, Kuenzli would have been justified... after all, fish was armed :rolleyes:


It comes down to the fact that fish didnt let Kuenzli beat him to within an inch of his life. For allot of people, a gun should only be used when you are literally seconds away from sure death. That means you need to let the attacker running at you with a knife stab you before you can shoot him. Otherwise, who's to know what would have happened in that last 5'. Maybe the attacker would have had a change of heart. Maybe he had carpel tunnel and a peg leg and you would have been able to disarm him without the use of the gun. There's always "what if's" and "could have been"'s. For some people there's just no reason to ever use a gun.

IMO the verdict came down to a bad pick of jurors.

hogdogs
May 21, 2009, 05:58 PM
http://www.google.com/search?q=Kuenzli+screwdriver&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a

McDonald also said the jury was prevented from hearing evidence and expert testimony about Kuenzli's psychiatric condition and history of violent behavior, including two suicide attempts and an alleged strangling attempt of a man visiting a woman Kuenzli had been stalking.
Not a normal fella...

The prosecution's contention that Kuenzli was unarmed was not accurate, McDonald said, adding that Kuenzli had a large screwdriver in his back pocket. This information was not presented to the jury and will be part of the basis of a motion for new trial and an appeal, he said.
The guy was ARMED!
Brent

Tennessee Gentleman
May 21, 2009, 06:14 PM
It comes down to the fact that fish didnt let Kuenzli beat him to within an inch of his life. For allot of people, a gun should only be used when you are literally seconds away from sure death.

The first part of your statement is pure speculation. Kuenzli never laid a hand on Fish. I think I can say this with great confidence; if an unarmed man runs at you and there is not a clear force disparity present and you shoot and kill him without him laying a hand on you then the chances are great that you will soon be needing soap on a rope for your showers. Most juries I feel confident will convict you. I would for sure.

IMO the verdict came down to a bad pick of jurors.

And it is probably the same type jury you would get as well. I don't think too many from TFL would be there to help you.

Not a normal fella...

Inadmissable as evidence unless Fish knew of his violent past. That is standard law. You can't kill somebody right now because of their past transgressions.

The guy was ARMED!

Brent, the screwdriver was in his pocket and presented no threat to Fish. Even if it were a knife or a gun in his pocket and Fish didn't know that or see it, then it would do him no good as a defense. Kuenzli was not attempting to use that tool against Fish. It's the law buddy, and you might not like it but there it is.

hogdogs
May 21, 2009, 06:33 PM
The gun in the waist band of a thug "mexican carry" is not a threat? we do not know if he were going to grab the screwdriver or not. His posturing aggressively against an armed old man cost him his life. As I see it, the only thing that got him convicted was the differences in statements regarding the timeline from shots fired and call for help. The pistol caliber and bullet type would have likely been minuscule mention had Mr.Fish fired then ran for help... whether or not he asked for an attorney previous to flappin' off at the ol' cake grinder.
Brent

David Armstrong
May 21, 2009, 06:46 PM
The gun in the waist band of a thug "mexican carry" is not a threat? we do not know if he were going to grab the screwdriver or not.
Then you can't use it either for or against. You don't get to use "we do not know" as a fact issue in court. If the guy did not threaten with it, you don't get to say 'well, he might have..." and use it for anything in court.

MrNiceGuy
May 21, 2009, 06:49 PM
I think I can say this with great confidence; if an unarmed man runs at you and there is not a clear force disparity present blah blah blah

The disparity of force, not force disparity, is subjective.

If a larger, fitter, and younger man was running at an older, weaker man who was obviously armed, his intentions are obviously malicious.... There's just no alternative. The disparity of force was clear and present from my perspective.


You are confusing the disparity of force, and the actual use of force. The disparity of force must be present so that YOU DO NOT HAVE TO WAIT until you are in the process of being beaten to death to defend yourself.

I still feel that a proper jury would have been able to realize this.


However, you've made some comments that make me wonder where you're getting your information.
I'm thinking Fish, who appeared to be a rather arrogant fellow got mad, shot at the dogs and then got ****** when Kuenzli came up to him and shot him. I think he overreacted and now a man lost his life.

I just have to wonder what you're basing that off of.
Kuenzli "who appeared to be a rather arrogant fellow" has a history of overreacting and becoming enraged when he feels his dogs are suffering an injustice.
It seems that your POV comes from the fact that fish didnt fight off the dogs with a stick... which IMO is asinine.

Tennessee Gentleman
May 21, 2009, 09:16 PM
The disparity of force, not force disparity, is subjective.


That is true but there are universally recognized criteria that a jury could use. Here is some from an old Massad Ayoob column http://findarticles.com/p/articles/mi_m3197/is_n3_v37/ai_12462185/ and how the jury decides that subjectively determines where you get to spend a good part of the rest of your life. I do not think there was a disparity of force between Mr. Fish and Kuenzli and neither did the jury apprently. Fish was not a "weak old man" by any means. He was an avid hiker and from the photos and media clips I have seen of him a rather fit man. Maybe Kuenzli was stronger but not that much to create such a defense IMO.

If a larger, fitter, and younger man was running at an older, weaker man who was obviously armed, his intentions are obviously malicious....

Pure speculation on your part. We don't know that Kuenzli ran at him OR threatened him. Even so, just because somebody runs up to you even if they are mad doesn't mean you can shoot them. We have no idea what Kuenzli's intentions were.

I still feel that a proper jury would have been able to realize this

There was nothing "improper" about the jury or the case would have been thrown out on appeal. If you think you are going to get a jury of TFL gun nuts for your murder trial; think again. You will probably get a group that might not even own firearms and THEY will decide your fate. So it might behoove us all to thnk about when we might use deadly force and make sure it lines up with legal reality.

I just have to wonder what you're basing that off of.

Statements I read from the Proscecutor, jurors and reading statements by Fish.

has a history of overreacting and becoming enraged when he feels his dogs are suffering an injustice.

Also, irrelevant to your defense as stated earlier. History of violence may not be entered into evidence unless the accused had previous knowledge of it. You can't shoot someone because they are butt heads or have a checkered past.

fact that fish didnt fight off the dogs with a stick... which IMO is asinine.

Maybe it's asinine, but Fish is rotting in jail for murder and probably will continue to. Maybe if he had used his "asinine" walking stick to shoo away the dogs he would be free today and Kuenzli would be alive? Can't know for sure but we DO know what happened when he decided to use his gun. Death and Prison. If I were you I would think that over some.

Glenn E. Meyer
May 22, 2009, 09:46 AM
The evidence from Jury Simulation studies is pretty clear (including my own work as presented to the Polite Society for their perusal after its publication in the Journal of Applied Social Psychology) that weapons appearance issues can have an influence in firearms usage cases.

That issue is pretty much a moot point. One can argue against it but it is at your own peril.

Tennessee Gentleman
May 22, 2009, 09:56 AM
that weapons appearance issues can have an influence in firearms usage cases.

Glenn, 'yer a talkin' like one of them thar high flutin' perfessers. How about some shirt sleeve english for us dummies?

Are you saying that an otherwise justified SD shooting will be undone because of the type gun I use to defend myself?

For example, I legally own a FA weapon and Ted Bundy breaks into my house and I hose him down. Will I go to jail? I am sure there is more nuance but could you elaborate?

Are you saying Fish would have been exonerated had he used a .38 with ball ammo instead of the 10mm?