Harold Fish gets a retrial

[johnwilliamson062]

I love how many people seem to think dog bites are these little nips your pets may have given you in response you your scolding. NO way I am fending off TWO dogs with a walking stick when I have a gun, and I probably have 100 plus more hours training with a walking stick type weapon than anyone else in this thread.

Someone running at me when I am armed and have just discharged my weapon certainly believes himself to be a threat to my safety, I am not one to second guess my opponents confidence until after things are settled. He closes to a few yards and pulls a knife and there isn't much chance I stopping him before it touches my body.

[Tennessee Gentleman]

Originally Posted by johnwilliamson062

I love how many people seem to think dog bites are these little nips your pets may have given you in response you your scolding. NO way I am fending off TWO dogs with a walking stick when I have a gun, and I probably have 100 plus more hours training with a walking stick type weapon than anyone else in this thread.

And what is equally disturbing is that some folk seem to think these were trained attack dogs, bred to fight pit bulls or wild rabid feral dogs. They were two pound mutts and the owner was there. Dogs like to run up to people and do so all the time. That does not constitute an attack. Many times a voice command or in this case a swing of a stick would ward them off. I have had dogs run at me many many times and was able to ward them off with a just a tree branch. I have been attacked by dogs too (bitten and jumped on) and warded them off as well with my feet and arms. Now these weren't pit bulls or Dobermans but neither were these. Maybe John you should consider using the stick rather than the gun as opposed to using it and ending up like Fish.

Originally Posted by johnwilliamson062

Someone running at me when I am armed and have just discharged my weapon certainly believes himself to be a threat to my safety, I am not one to second guess my opponents confidence until after things are settled.

Maybe if you just ward off the dogs without the gun then you won't need to shoot the owner. Fish went to his gun first and then shot an unarmed man. If you want to take your chances with a jury over that then have at it but don't be surprised if you end up the same way Fish did.

[hogdogs]

If you shoot an unarmed person you are going to have to make the jury believe that disparity of force between you and the attacker forced your hand.

In this case the attacker was armed with a large screwdriver in his back pocket IIRC...

As I said before, just because someone hits you does not give you the right to kill them.

You don't even have to hit me to give me the right to shoot you.... I just have to have reasonable belief that you intend to kill me or cause great bodily harm... Sorry bud but I got a glass jaw and other soft targets you won't get a chance to cause "GBH" to.

Just because you have a "more effective" means does not mean you have to use it. If my walking stick would do the job (and I beleive it would have) then I think morally that should be the choice rather than going immediately to the gun.

Morally isn't what is on trial... legally the guy was spot on!
I will buy you a steak of your choice if you can take a walking stick to 2 personal protection trained large breed dogs and stop them from attacking you! For it is never obvious the level a dog may be trained or mentally predisposed to go to. Heck I will even make it easy for you, I will put a pig on a rope and turn loose 2 of my catch dogs and you just defend the pig...

I dispute your assumption that they were a threat at all.

The dogs were a threat as soon as they started a high speed aggressive approach to a person who had not instigated this behavior...

going straight to the gun may have not been the best thing to do.

The military could save a ton on ammo costs with this tactic... soldiers should be issued walking sticks!
Brent

[Jim March]

The dogs never bit Fish before he fired or after. I dispute your assumption that they were a threat at all.

If you get in a fistfight or ground fight with a guy who has two large dogs with him, regardless of breed or their otherwise friendly nature, it's an odds-on bet they WILL join the fight.

Dogs don't understand what a gunfight is. Once the assailant was shot, Fish made no more aggressive moves and in fact even delivered some aid. The dogs at that point didn't fully realize a fight had even happened.

But they damned well understand what a fistfight is.

If you want some insights into a dog's level of understanding of the world, watch this video:

http://cuteoverload.com/2009/07/05/o...w-they-did-it/

Note that this is one of the smartest dogs I've ever heard of. First, he knows that the 3D effect of the screen is false in some way. He then makes the Einstein-level leap that the cat on the screen is the same as his buddy the cat right behind him. (The video is in NO WAY violent .)

That's the *pinnacle* of a dog's understanding of what's going on around them.

Also, just because a person is kooky doesn't mean he gets the death sentence.

Umm...yeah...no. Sorry. I have seen WAY too many people who "act out" in extreme rages because it makes them feel more powerful. They *enjoy* being threatening. It's a major form of bullying in which they enjoy terrifying everyone around them.

I detest that sort of behavior and will never tolerate it's being directed at me. And yeah, I know it's fractionally possible a DA might read these words someday. Fine. I stick by them regardless.

Have you forgotten that Fish never got a hand or tooth laid on him and another man is dead?

Good riddance.

You want me to respect human life? I assure you I do...but the dead guy had a long history of acting inhuman.

Behave like an animal, get treated like one.

We only have Fish's word on what happened too.

Wrong!

We have a bunch of reports on how the assailant acted in similar circumstances. All of those reports back up Fish's account.

Again, don't be too sure he will get off and even if he does as PT111 said look what it cost him.

Yes, it cost him a lot - via an overzealous prosecutor, a bad judge and a stupid jury. Sucks. But the new legal change making the new standards for self-defense retroactive WILL get him off. Under the old standard Fish had to prove the need to shoot - under the new, the state has to disprove it. Combine that with the new evidence allowed in regarding the dead guy's history and Fish should NOT take any deal that would leave him with a criminal record.

[Glenn E. Meyer]

Don't you think by now - that there is at least reasonable doubt that Fish was in the right to defend himself?

Isn't that the standard? BTW, this case again shows how as Fiddletown and I put it - the 'if it is a good shoot' blather is baloney.

You need to be able to deal with the ambiguous situation.

[hogdogs]

Don't you think by now - that there is at least reasonable doubt that Fish was in the right to defend himself?

Glenn, For clarification sake... Are you implying the reasonable doubt as to whether he was in the right to self defense or reasonable doubt for sake of the jury finding guilt?
Of course I think there is a chance he could have actually intended to shoot someone in malice but the case of the case is that the state had to prove to the jury this to the point they had ZERO doubts he was wrong for the shooting. In this case I would have caused a hung jury with my doubt.
Brent

[Glenn E. Meyer]

Brent, I mean the standard that the jury is supposed to use. Given what we now know and might be presented in a new trial, seems to be that there is NO way to be sure beyond a reasonable doubt that Fish wasn't justifed in defending himself.

BTW, I don't think folks like us are going to get on this type of jury if the DA has any pre-emptory challenges.

[hogdogs]

I was hoping that was what you meant.... I don't think an honest person could find him guilty with the new requirements.

I know I ain't bright enuff to snooker the DA into letting me on a jury...

Brent

[Tennessee Gentleman]

Originally Posted by hogdogs

In this case the attacker was armed with a large screwdriver in his back pocket IIRC...

Discovered after the fact and never brandished by Kuenzli therefore not a weapon.

Originally Posted by hogdogs

I will buy you a steak of your choice if you can take a walking stick to 2 personal protection trained large breed dogs and stop them from attacking you!

Those aren't close to the two mutts Fish was dealing with. I will take your bet on two randomly chosen pound mutts though any day.

Originally Posted by hogdogs

The military could save a ton on ammo costs with this tactic... soldiers should be issued walking sticks!

C'mon Brent this is not combat, war or the military. This is normal civilian life. Do you WANT to go to prison? I hope not, I have visited there and it is not nice so I'll try real hard not to shoot someone unless it is a last resort.

Originally Posted by Jim March

We have a bunch of reports on how the assailant acted in similar circumstances. All of those reports back up Fish's account.

And just because Kuenzli acted that way in the past did not mean he acted that way that day. Also, IIRC Kuenzli never really hurt anybody when those dog incidents happened he just just yelled and pushed folks. Hardly life threatening. Again, this stuff may or may not help Fish, we'll see.

Originally Posted by Jim March

I detest that sort of behavior and will never tolerate it's being directed at me. And yeah, I know it's fractionally possible a DA might read these words someday. Fine. I stick by them regardless.

I detest a lot of behavior. Rude drunken fans at sporting events, crazy drivers etc but I am not going to shoot them dead for it. Why waste your life and your financial security for a crazy nobody? Jim, I hope you don't live to regret those words.

Originally Posted by Glenn E. Meyer

Don't you think by now - that there is at least reasonable doubt that Fish was in the right to defend himself?

Isn't that the standard? BTW, this case again shows how as Fiddletown and I put it - the 'if it is a good shoot' blather is baloney.

Maybe, we'll see. My reading of the first jury was they felt Fish overreacted. I am not sure that more bashing of Kuenzli will change that. Maybe it will. As Ken says each trial is a crap shoot. And I agree about the "good shoot" baloney too. These things are often convoluted.

[rampage841512]

I am not sure that more bashing of Kuenzli will change that.

Since when is telling the truth bashing?

As Glenn said, and I said well before him, there is more than enough reasonable doubt in this case if it goes to trial.

[hogdogs]

Discovered after the fact and never brandished by Kuenzli therefore not a weapon.

So had a Seacamp been found "after the fact" it would be claimed he had no weapon?
And he was armed with 2 flailing weapons physically attached to the ends of his arms so, at least in the states I have resided, he was "armed" to some extent.

Those aren't close to the two mutts Fish was dealing with. I will take your bet on two randomly chosen pound mutts though any day.

But at the moment you are charged by the dogs you do not know this. As well I have seen some, seemingly, pound mutts with some pretty high grade PP grades and awards.
How about that offer with my catch dogs? They are "mutts" (American bulldog Pit crosses) And they are not trained to catch either, just going on the prey drive and instincts that all dogs have to one degree or other but you can't judge a dog nor their intent in 3-5 seconds just like you can't a younger larger yelling out of control man...

And just because Kuenzli acted that way in the past did not mean he acted that way that day. Also, IIRC Kuenzli never really hurt anybody when those dog incidents happened he just just yelled and pushed folks.

We know he acted that way because an upstanding, educated stable person told us so....
And this same man had no idea to how far this crazed manic was going to take this aggressive maniacal behavior.
Brent

[Tennessee Gentleman]

Originally Posted by hogdogs

So had a Seacamp been found "after the fact" it would be claimed he had no weapon?

Not if he didn't draw it and attempt to use it no.

Originally Posted by rampage841512

Since when is telling the truth bashing?

When it has no relation to the incident. Kuenzli was a nutty dude it appears but that may not matter. Remember how they used to handle rape trials by bringing in old lovers to try and show the women was loose? IIRC you can't do that anymore. In fact, you can rape a prostitute if she says no and her "character" will not be admitted as evidence. Has to be relevant and maybe some of Kuenzli's past is, we'll see. He may get off but it has cost him a bunch that he might could have avoided.

Originally Posted by hogdogs

How about that offer with my catch dogs?

No thanks I suspect they are trained and I probably wouldn't do too well in that set-up situation. Lets stick with the randomly chosen ones from the pound, I suspect I could do that pretty well. I have in the past.

[nazshooter]

The dogs weren't wild feral types and Fish knew that and a walking stick probably would have fended them off and not escalated the incident.

And you're willing to bet your life on it? I don't think you are giving enough weight to the fact that this incident happened out in the woods, not in a place where Fish could expect the police and an ambulance to come to his rescue if it turned out that he had underestimated the threat.

IMO, if you have the means to defend yourself safely and not use deadly force then you should use the lesser force if available.

Is firing a gun into the ground (essentially just making a really loud noise) really that much greater than wacking the dogs with a stick? Maybe in a neighborhood where you have innocent bystanders to worry about but in the woods it doesn't seem THAT drastic. He had no way of knowing Kuenzli was crazy, and if you don't think he was crazy then who else charges an obviously armed man screeming death threats?


BTW, just because a dog's owner is near by doesn't make the dogs less dangerous. Twice my wife was attacked while jogging and in both cases the owners were watching when it happened. One of them thought it was funny that her little dog was chasing a jogger and the other was actually yelling "it's OK he doesn't bite" as the dog was hanging off of my wife's leg.

[csmsss]

TG, you're mistaking what you think you would do with what the law required Fish to do. Just because you think you would behave differently than he did in that situation doesn't mean A) you actually would and B) Fish acted illegally or even unreasonably.

You weren't there. None of us were there. There certainly seems to be an abundance of confusing and conflicting circumstances which will make it extremely difficult to successfully retry Fish. But you seem to entirely ignore that in lieu of reasserting ad infinitum what you claim you would have done.

[Tennessee Gentleman]

Originally Posted by nazshooter

And you're willing to bet your life on it?

Fish bet the other way and it cost him three years in prison (at least) and $500,000 in legal bills. I am not sure the fact it happened in the woods mattered.

Originally Posted by nazshooter

Is firing a gun into the ground (essentially just making a really loud noise)

Drawing and shooting a deadly firearm is doing a lot more than "just making a loud noise." I hope if you carry you know that.

Originally Posted by nazshooter

who else charges an obviously armed man screeming death threats?

That is what Fish said. The coroner said Kuenzli was standing still when shot and a wound to his arm may have been defensive.

[nazshooter]

As Glenn said, and I said well before him, there is more than enough reasonable doubt in this case if it goes to trial.

Reasonable doubt wasn't really the standard here. The law at the time (since corrected) was that Fish had to prove that this was self defense rather than the prosecutor having to prove that it wasn't. Given that the defendant was the only living witness it was going to be an uphill battle for sure.

[Tennessee Gentleman]

Originally Posted by csmsss

TG, you're mistaking what you think you would do with what the law required Fish to do.

I am discussing both. What you keep forgetting is that Fish was arrested prosecuted, and convicted of murder by a state court. It was done legally and under law. The trial court made some errors and Fish MAY get off but he may not. So it is about what I would have done AND what the law requires.

Originally Posted by csmsss

You weren't there. None of us were there.

Never said I was there. I am discussing the facts as presented just as you are. I think Fish made a mistake by drawing and firing the warning shot when he could have used other means to ward off those dogs. By his doing that act, he started down a path that led ultimately led to financial ruin and prison. My point in discussing it with others is to learn and not go down that same path myself if God forbid I find myself in that position. That is what I think the forum is for IMO.

[nazshooter]

That is what Fish said. The coroner said Kuenzli was standing still when shot and a wound to his arm may have been defensive.

Yes, but Fish's description of Kuenzli's actions was very similar to what some of the witnesses said that Kuenzli had done on other occasions. How could Fish possibly have made up a story that matched Kuenzli's reputation so well even though he didn't know Kuenzli's history at the time he gave his description of events? I'm thinking in particular of the whole punching at the air thing that Kuenzli had a history of doing.

[Tennessee Gentleman]

Originally Posted by nazshooter

The law at the time (since corrected) was that Fish had to prove that this was self defense rather than the prosecutor having to prove that it wasn't.

It is what is known as an affirmative defense. However, reading a Massad Ayoob posting in another forum, jury psychology is still in play; to wit;

Originally Posted by Mas Ayoob

The wording of the law aside for a moment, it's also simple "Jury Psychology." If the jurors don't believe it was self-defense, they will not acquit. Therefore, they must be presented with clear and convincing proof that it WAS self-defense.

and I think he knows of which he speaks.

Another pertinent quote from a lawyer:

Originally Posted by degoodman

Some other facts are in order. A VAST majority of self defense shootings are not prosecuted at all. The prosecutor, after review of the evidence, either declines to file charges, or in places where he's required to, he takes the case to a grand jury with a recommendation to no-bill. Prosecutors offices are not flush with cash, and they are not in the business of pressing forward weak cases with legitimate claims of self defense in play because they lose those cases, and their bosses, and ultimately the elected officials and taxpayers get really tired of that stuff, and fast.

If charges are filed, and a case advances to a jury trial against you, you can rest assured that you will be presenting a defense, at tremendous expense, and that defense will not consist of a claim of "self defense" after which your attorney confidently rests his feet upon the defendants table and watches as the prosecutor wets himself because he doesn't have the goods on you. The presumption of justification if that claim is made is almost always a rebuttable presumption, and the rebuttal is also by preponderance of the evidence, not proof beyond a reasonable doubt. Because lets face it kids, the hurdle the prosecution has to go over is EXACTLY the same, whether you claim self defense or not, which is to prove beyond a reasonable doubt that you willfully or intentionally killed another person with criminal intent, and proving that by itself already rebuts your claim of self defense completely. Or else he argues you killed the person neglegently or accidentally, which you seal your own fate behind by claiming self defense, which is an intentional act, throwing neglegence and accident out the window with it.

Originally Posted by nazshooter

Yes, but Fish's description of Kuenzli's actions was very similar to what some of the witnesses said that Kuenzli had done on other occasions.

In which cases Kuenzli never hurt anyone IIRC. Cuts both ways.

[RDak]

TG: Are you of the opinion that deadly force can only be used if someone is using a deadly weapon against you?

I'm having a very hard time following your logic on this one.

It seems that you are going out of your way to portray Fish as a murderer.

To me, with the facts as provided by the media, there is clearly reasonable doubt that he is a murderer.

He's alone minding his own business outside with no one around, then he is attacked by three dogs, he shoots a warning shot at the dogs, they run away, yet, he is then attacked by someone who turns out to be a known violent criminal, then he shoots to kill because he is afraid for his life.

Those facts don't rise to the level of reasonable doubt for you? You've got to be kidding?

[OuTcAsT]

If charges are filed, and a case advances to a jury trial against you, you can rest assured that you will be presenting a defense, at tremendous expense, and that defense will not consist of a claim of "self defense" after which your attorney confidently rests his feet upon the defendants table and watches as the prosecutor wets himself because he doesn't have the goods on you. The presumption of justification if that claim is made is almost always a rebuttable presumption, and the rebuttal is also by preponderance of the evidence, not proof beyond a reasonable doubt.

Um, Sorry, but I believe someone has their facts a bit askew. If charges are filed in a criminal court, the presumption is; innocent until proven guilty beyond a reasonable doubt.

Only a civil trial judge (or jury) has the ability to rule on a "preponderance of the evidence"

Because lets face it kids, the hurdle the prosecution has to go over is EXACTLY the same, whether you claim self defense or not, which is to prove beyond a reasonable doubt that you willfully or intentionally killed another person

I'm sorry, but doesn't an "affirmative defense" of self defense already admit that you have killed (or injured) someone, and the only thing to be proven is if it was justified under the law ? This guys' "circular" logic is astounding. Perhaps a bit too much Cutty?

[PT111]

He's alone minding his own business outside with no one around, then he is attacked by three dogs, he shoots a warning shot at the dogs, they run away, yet, he is then attacked by someone who turns out to be a known violent criminal, then he shoots to kill because he is afraid for his life.

I don't think that TG is trying to portray Mr. Fish as a murderer at all but rather saying that this is not a slam dunk acquittal as most are assuming. I did not find where the person he killed was a known violent criminal at all. Now I may have missed it but he was known to get very upset about his dogs and act the same way that Mr. Fish described but never caused any serious problems beyond scaring some people.

You are absolutely correct that Mr. Fish was minding his own business when two dogs ran up to him barking and growling. You are also correct that when he fired into the ground they turned and ran away. At that time no one had been physically harmed. The dog owner then started running and cursing just like he has been known to do at others. Was this relevent to the case? The appeals court says yes. This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

Mr. Fish felt threatened for his life at the time but did his fear rise to the level of taking another person's life. That is what the jury must decide. Mr. Fish gambled on betting the jury would not find him guilty of murder. I would be willing to bet that if the jury had been allowed to find him guilty of a lesser charge such as manslaughter that they would have instead of murder. He gambled and lost. Now he may have to do it all over. Like TG I don't think it is a sure thing that he will be turned loose by a second jury especially if they are allowed to consider lesser charges.

My free advice to Mr. Fish and it is worth exactly what he is going to pay me for it is to work out a deal with the DA for time served and see can't he put his life back together. He has already gambled one time and lost and a second time is no better.

[mavracer]

I don't think that TG is trying to portray Mr. Fish as a murderer at all but rather saying that this is not a slam dunk acquittal as most are assuming. I did not find where the person he killed was a known violent criminal at all. Now I may have missed it but he was known to get very upset about his dogs and act the same way that Mr. Fish described but never caused any serious problems beyond scaring some people.

trying to scare someone with a gun should get you a Darwin award.

This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

easy enough Mr Fish had no way to know that it would be hot air as a matter of fact you have no way of knowing it was going to be hot air.

[Tennessee Gentleman]

Originally Posted by RDak

TG: Are you of the opinion that deadly force can only be used if someone is using a deadly weapon against you?

No, I have never said that. However, if you shoot an unarmed person absent a deadly weapon and cannot show that a disparity of force existed between you and your attacker you might well go to jail in many states.

Originally Posted by RDak

It seems that you are going out of your way to portray Fish as a murderer.

A lawful jury already did that. But yes I have doubts as to his innocence.

Originally Posted by RDak

is then attacked by someone who turns out to be a known violent criminal

I am not sure that is correct. Don't recall that Kuenzli had been arrested for any violent crimes but that doesn't matter. What matters is what happened at that incident. If I saw Ted Bundy walking around and went up and summarily shot him I could face murder charges also.

Originally Posted by RDak

Those facts don't rise to the level of reasonable doubt for you? You've got to be kidding?

Not based on what I know about it no. I am not sure Fish did not unreasonably overreact to the situation that ended up causing a man's death. I might not convict him of murder but perhaps manslaughter if the laaw permitted it. I think many others are unsure as well.

[nazshooter]

The dog owner then started running and cursing just like he has been known to do at others. Was this relevent to the case? The appeals court says yes. This can also harm Mr. Fish as although it is scary actions it turns out that it is only a bunch of hot air by they deceased.

Not really. As I understand it the main issue for the jury was "was the victim really acting as aggressively as Fish claimed or was he exaggerating it to justify his actions?" If the jury had actually believed Fish's account 100% then this really was a good shoot under AZ law but they weren't allowed to hear testimony that Kuenzli really did sometimes act exactly that way and it did sound a bit too crazy to be real. What the State Supreme Court said was that next time they will hear that testimony. IMHO that's a huge difference.

The other thing that I haven't seen mentioned here is that in AZ you are allowed to use deadly force to defend against an assault. The state Supreme Court said that the jury weren't given adequate instructions in this matter even when they specifically asked what constituted an "attack". This is a big deal because many people think that an assault requires physical contact even though it doesn't.