Revisiting the Harold Fish incident

[Garage Dog]

Great discussion. Really, after this is all boiled down it shows what happens in a political correct society. Yes, it's clear Fish had poor representation and mistakes were made but it is also very clear that Fish acted reasonably given the situation. Slick lawyers and a society dumbed down leads us to where we are today.

[KChen986]

The judge threw out evidence of the victim's menacing/personality disorders. I say that calls for an appeal.

[Chinny33]

now im scared to carry my gun!

I would rather die than be found guilty because some morons cannot understand the laws they are hired to uphold. No innocent person wants to go to prison for 10 years with TRUE criminals.

Is this guy STILL in prison?

Geeze...I carry a Glock 20, 10mm in the wilderness sometimes too.

:barf:so so so so sad.:barf:

[nate45]

Never, ever talk to the police.

Never, ever, ever, for any reason answer questions or give a statement to the police, without the advice and presence of an attorney.

Originally Posted by scorpion_tyr

"I was afraid he was going to kill me. I shot him to save my own life. I'd like to speak to a lawyer before I answer any more questions."

I can go along with that, a lawyer may come along and tell us that was to much information, but it sounds reasonable to me.

None of the evidence about timelines, or not remembering what the man he shot said, etc would have been presented at the trial. In fact there probably would not have been a trial, if Fish would have kept silent.

[KChen986]

It's a very very borderline case. I thought evidence of the 10mm "HOLLOWPOINT!!!" took advantage of the juries ignorance. 10mm is a great anti-bear round, and as someone else pointed out, was utilized by the FBI at before.

I didn't read any evidence between the physical fitness between two parties. One person was a fire-inspector (big bulky, burly, young and in shape?) and the other was a retired school teacher (57, perhaps frail?). That may have established a more reasonable use of deadly force...

It's too bad the case turned out the way it did. Hopefully he'll get his sentence abrogated in to probation.

[scsov509]

It wouldn't have been hard to find an officer in a jurisdiction where 10mm are standard issue.

Like say the FBI, who used the 10mm from about 1986-1990 before the adoption of the 40 S&W, which incidentally is one of the most popular service cartridges in the United States right now and was introduced into the market as more moderate version of the 10mm to accomodate a wider variety of shooters? I mean listen, if someone wants to make the case that the 10mm is not an excessive cartridge, then it's not hard to look at the FBI's extensive studies done during that timeframe prove the point. The 10mm is an exceptional service cartridge, and is still in use by many law enforcement agencies in the United States for this very reason.

The truth is that: 1) The defense should have been better prepared to combat this ridiculous allegation, and 2) this sort of crap shouldn't be allowed in a court of law when it has absolutely no bearing on the facts of the case in the first place. The facts are that the handgun itself was legally owned and carried, and that Fish had also completed a fair amount of formal training on defensive shooting with this weapon. A prosecutor shouldn't be allowed then to make an argument about something like this when it is immaterial to the hard facts.:barf: Tell me, how is it that the prosecutor gets to bring into question the caliber of the defendant's weapon while the defense doesn't get to introduce Mr. Kuenzli's past history of violence? It's a ridiculous double standard that reeks of prosecutorial misconduct and abuse of power in the legal system.:barf:

[Musketeer]

Never, ever, ever, for any reason answer questions or give a statement to the police, without the advice and presence of an attorney.

This can easily be taken too far. You have a right to not incriminate yourself but when it is a question regarding public safety where incriminating yourself is not an issue the answer is not so clear. Just be aware of it.

Personally my answering of questions after a shoot would be held only to those things immediately visible absent of opinion with the addition of "I was in fear for my life and acted to stop the threat." After that it is lawyer time.

[csmsss]

Bottom line is they are going to take you to the police station REGARDLESS of what you say at the scene. The less said, the better. Request an attorney, and shut the hell up after that.

I have yet to see a statement made at the scene result in a defendant's acquittal.

[JohnH1963]

Here is the point and exact reasoning as to why you should use the local patrol officer's weapons and ammo exactly.

1.) Your greatest enemy after the incident is over is now the local prosecutor and police.

2.) Both the prosecutor and the police will use everything and anything against you to support their case.

3.) Just about anything can be twisted and turned into a negative. For example, if the local police are carrying 8 shot 1911s in .45 and you are using a P226 with a 20 shot magazine then the argument might be that the police do not feel the need to use such high capacity weapons OR lets say the police are using the P226 with a 20 shot magazine and you are using the 1911 in .45. It could be argued that the police don't feel the need to carry such a large caliber and you used the 1911 for its intimidating effect.

Another example is the rounds. Lets say you use the Winchester Ranger T series (ole Black Talons) and the police use the Federal Hydrashocks. It can be said that you used the ole Black Talon round that the police feel they dont need to use....

You see how the logic can be twisted about.

If you use the exact same rounds, pistol and caliber that the police use and the prosecutor sames something negative about your weapons choice, then they are essentially throwing their own police force under the bus. The prosecutor is not going to throw his buddies under the bus and opening up a can of worms by saying their local force is using inhumane or extraordinary weaponry that no one uses.

So if the local patrol officer is using a Glock 22 with Federal Hydrashocks, then thats what you use. The prosecutor isnt going to throw his officers under the bus.

Lets say the prosecutor mentions this in court and your attorney objects. The judge MIGHT instruct the jurors to disregard, but will the jurors really disregard? Will that bit of information suddenly disappear from their minds? What if your attorney is sleeping and does not object or doesn't have the sense to object?

Take note, Im not saying the police or the prosecutor are generally our enemies or adversaries. However, I think they should be viewed as such when you are sitting with a smoking pistol over a dead body. In that case, then your attorney is your best friend and everyone else is the enemy.

[Musketeer]

I have yet to see a statement made at the scene result in a defendant's acquittal.

Yet it will often result in the shooter not being charged.

Sorry, some common sense must be used here and many defensive shootings never progress to an arrest because all the pieces fell into place at the scene.

Don't get elaborate. Don't hypothesize. State only what they see and stick to having feared for your life and having acted to stop the threat. Beyond that is lawyer time. Saying nothing will GUARANTEE being guilty in the LEO's eyes first.

[Musketeer]

Here is the point and exact reasoning as to why you should use the local patrol officer's weapons and ammo exactly.

Sorry but you take a valid idea and stretch it too far.

So have you had the same training as the LEOs?

Have you had your proficiency documented regularly?

Does the city buy you your gun and ammo?

I don't think so.

You are in a different situation. While I would advise against any round advertised as a "Man Killer 3000" and using a Desert Eagle .50 with "FINAL JUSTICE" engraved on the side there is no reason to shy away from a legal standpoint from any commonly available ammunition type in general use or caliber functionally suited to the task.

Fish was hung out to dry on caliber and bullet type because his representation was stupid.

[csmsss]

Yet it will often result in the shooter not being charged.

Sorry, some common sense must be used here and many defensive shootings never progress to an arrest because all the pieces fell into place at the scene.

Don't get elaborate. Don't hypothesize. State only what they see and stick to having feared for your life and having acted to stop the threat. Beyond that is lawyer time. Saying nothing will GUARANTEE being guilty in the LEO's eyes first.

Nope. Only in the tiniest of tiny towns would this work. In every town and city of any size, all shootings will be investigated - not by the first cop called to the scene, but by detectives and professional investigators who will not be terribly impressed by what you volunteered at the scene (but who will certainly use it against you should it prove helpful to them).

Contrary to what you might think, I'm not suggesting never cooperating with the police nor never saying anything to them, only having a competent attorney with you when they do ask questions, so as to help you avoid making potentially contradictory or unintentionally self-incriminating remarks.

[David Armstrong]

I mean listen, if someone wants to make the case that the 10mm is not an excessive cartridge, then it's not hard to look at the FBI's extensive studies done during that timeframe prove the point. The 10mm is an exceptional service cartridge, and is still in use by many law enforcement agencies in the United States for this very reason.

Actually, that sort of helps the prosecutions case. The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents, and very few LE agencies in the US ever adopted the 10mm, much less kept it around.

Tell me, how is it that the prosecutor gets to bring into question the caliber of the defendant's weapon while the defense doesn't get to introduce Mr. Kuenzli's past history of violence?

Because one (the gun) is pertinent to the case at hand, as it was used in the incident. The past history of violence is fairly immaterial for 2 reasons: 1, the defense can't use it unless Fish knew about it before the incident; 2, IIRC, the prosecution admitted to Fish acting aggressively during the incident, so there was no issue of if he could be violent.

[Musketeer]

Actually, that sort of helps the prosecutions case. The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents, and very few LE agencies in the US ever adopted the 10mm, much less kept it around.

Which is why they have the .40 loaded to the same levels as the downloaded 10mm they issued.

No, you can still make the case the the FBI spent millions and decided it was the right round to use.

Note that the FBI also no longer uses the .357 magnum or 9mm so are those rounds therefore invalidated?

[Musketeer]

and there are still agents with arms in 10mm out there.

[scsov509]

The FBI got rid of the 10mm handgun because they found it was to much gun for most of thier agents...

The FBI got rid of the 10mm because it was too much recoil for some agents, and because the 10mm frame is too large for those with smaller hands. At no time however has the FBI said that the 10mm was excessive for a service round, and a defense attorney should have done his homework and had an FBI witness to testify as such so as to counter the allegations that the 10mm round was an excessive caliber for personal defense.

Very few LE agencies in the US ever adopted the 10mm, much less kept it around.

I don't know upon what you base this statement, but my personal experience differs. My agency is the largest on our half of the state, and was issuing the 10mm when I started in 1999. We switched to the .45 around 2003, which is by the way only a year prior to the incident in question, and did so because our Smith and Wesson 10mm's were not functioning well. I'm told that it was more cost effective to switch to stay with Smith and Wesson and switch to the .45 than to switch companies altogether and stick with the 10mm. However, our decision had nothing to do with the cartridge being in any way excessive, which is the argument the prosecution made.

Someone should have cried foul and confronted this allegation showing first of all that some agencies have and do use the 10mm as a service cartridge, and I'd suspect that in 2004 there would have been an even larger number of agencies still using the 10mm. Our agency alone could have provided an example of one sizable department that was doing so only a year before this incident. But if one is to argue that there is a case in support of the 10mm being excessive because some agencies have moved away from it, then that claim too needs to be confronted by examining the reasons why said agencies moved on from this cartridge.

I'd submit that if you talk to those actually in the know, those making decisions at an agency level to make these changes, you'd find that no one has suggested that the 10mm was excessive. Is the recoil sharp? Sure. Is the frame of a 10mm too large for those with smaller hands? Sure. Is the 10mm a more expensive round than other possible service rounds? Certainly. However, none of this has to do with the round itself being excessive in the sense this prosecution argued. This trial should have been about Fish's decision to use lethal force, and this prosecutor should not have been allowed to cloud that question with this whole issue of caliber. Ridiculous, irrelevant, and one more indication that the judicial system is broken.:barf:

[heyduke]

Man gets railroaded by our justice system?

Three cases come to mind right here in NC that have been in the news

1. Darryl Hunt
2. Kalvin Michael Smith
3. The Duke Lacrosse team

Just because men wear badges or work for the court system to put bad men behind bars, don't assume that their intentions are honorable and just.

[Sparks2112]

Musketeer

and there are still agents with arms in 10mm out there.

Doesn't the FBI use MP-10's instead of MP-5's? (I'm pretty sure they do...)

[Musketeer]

I believe the designation is MP-5/10 and yes they are still out there. One agent shoots at a range with a buddy of mine and swears by his. They wanted to give him a CAR and he refused since the MP-5/10 was so handy.

[David Armstrong]

Which is why they have the .40 loaded to the same levels as the downloaded 10mm they issued.

Exactly. You're not thinking like attorneys or juries, which is the problem. "The FBI had to go to a weaker round, the 10 was so powerful."

Note that the FBI also no longer uses the .357 magnum or 9mm so are those rounds therefore invalidated?

Nope, as they have a long history of successful use by LE. The 10mm does not. Got to quit thinking like gunnies here and learn to think like attornies. Validated or invalidated is fairly irrelevant, normal/common versus unusual can become relevant, especially when the "unusual" can also be presented as more harmful.

and a defense attorney should have done his homework and had an FBI witness to testify as such so as to counter the allegations that the 10mm round was an excessive caliber for personal defense.

Doubt that it would matter. Hard to win an argument by saying "our agency got rid of it as a handgun because so many of our agents couldn't handle it."

I don't know upon what you base this statement, but my personal experience differs.

I base it on the facts. Very few agencies adopted the 10mm, fewer have stayed with it. Those are just facts.

you'd find that no one has suggested that the 10mm was excessive.

Mmm, maybe the FBI Firearms Training Unit?
{Dick Metcalf, 1999, discussing the 10mm} Although it was selected by the FBI for use in the field, their Firearms Training Unit "concluded that its recoil was excessive in terms of training for average agent/police officer competency of use and qualification," ....

Ridiculous, irrelevant, and one more indication that the judicial system is broken.

It's not broken at all, it is just that some know how to play it better than others, which is all the more reason for us to learn how to play it also.

[Musketeer]

Exactly. You're not thinking like attorneys or juries, which is the problem. "The FBI had to go to a weaker round, the 10 was so powerful."

You might realize that the FBI 10mm load is almost identical to the .40 they use now. The change was guns with smaller frames allowing those with smaller hands to better grasp it. The recoil problem was due to a poor fit between the shooter's hand and the weapon, not excessive recoil in the cartridge. The proof of this is to look at what 10mm ammo was issued and compare it to what .40 ammo replaced it.

Sorry, but I have been down this path before. Your argument does not hold water. Certainly a prosecutor can try to make it but a COMPETENT Defense Attorney can easily tear it apart. The defense here though was INCOMPETENT on several fronts, caliber being only ONE.

There were SEVERAL ways to eliminate the attack on the gun, caliber and bullet, defense was just too stupid to do so.

[MaxHeadSpace]

Personally my answering of questions after a shoot would be held only to those things immediately visible absent of opinion with the addition of "I was in fear for my life and acted to stop the threat." After that it is lawyer time.

Any half competent Prosecutor will enter that statement into evidence and argue that it's "rehearsed" . . . That it appears repeatedly in gun forums and is presented as the "rubric" for establishing "self-defense."

The ONLY statement to make is: "I want an attorney."

Once you say that, questioning stops.

Statements after that should be limited to things like, "The cuffs are kinda tight." And, "You wanna brace me while I get in the back of the cruiser?" "I need to pee."

[Tennessee Gentleman]

I have read a bit about this incident. What I read when reporters talked to the jury after the trial indicated that the 10 MM and hollow points didn't really figure in their decision. What the jury felt was that Fish overreacted to the situation and that is why they convicted him. They knew the other guy (Kuenzli) had some violence issues and many of them said they wished Fish had taken the stand to tell his side of it. He chose not to. One question I have had about this one was that Fish had a walking stick but did not use it to fend off the dogs but went straight for the gun and threw the stick away. I am not sure at all about this one being justice denied. This has been discussed before BTW many times on this forum like here: http://www.thefiringline.com/forums/...ht=harold+fish. My takeaway? Try real hard NOT to shoot somebody.

[David Armstrong]

You might realize that the FBI 10mm load is almost identical to the .40 they use now.

I realize that the FBI settled on a downloaded version when they found the full 10mm to much. The jury won't realize that, won't care about that, and it is immaterial as Fish was using the full power loads, IIRC.

Sorry, but I have been down this path before. Your argument does not hold water.

Really? Tell that to Mister Fish. That's what so many always miss. We're gunnies. We know better. The jury is not gunnies. In fact, they will probably try hard to get anyone who knows much about guns off the jury. The argument does hold water WITH THEM.

Certainly a prosecutor can try to make it but a COMPETENT Defense Attorney can easily tear it apart.

That's a heck of an assumption that, if I may borrrow a phrase, doesn't hold water. It is not easy to tear it apart, as both sides will bring forth experts in the field who will testify on the issue. I've just pointed out the easy stuff....the FBI dropped it, no major agency uses it, the FBI said it was excessive for their agents. A jury will just drool over that stuff, and we haven't even gotten to the real bad stuff. Can it be beaten? Sure, but don't assume it will be easy, and even if it is easy don't assume the jury won't latch onto it. I've seen way to many totally insignificant things be just the item that tipped the scale in jury trials. Personally, based on my knowledge of the case, I think that is what happened. Several factors were against Fish, it is not nearly as clear-cut as some would suggest, and so on. The "super gun with the deadly bullets" may have just been the icing on the cake for the jury to say "this guy was wrong."

The defense here though was INCOMPETENT on several fronts, caliber being only ONE.

Just out of curiosity, have you read the court transcript?

[quinn2187]

so those of you saying you should carry the same thing the local PD carries are saying that its wrong to carry a gun that will do what its intended for just because some prosecutor might say its to big? any reasonable defense attorney would squash that in a heart beat. and as far as hollow points go they ARE the standard for self defense rounds.