Revisiting the Harold Fish incident

[JohnH1963]

Many people here might or might not be familiar with Harold Fish. He shot an unarmed man with a 10 mm in Arizona and was sentenced to 10 years.

Now before posting to this thread, please first take a few moments to click on these links and read the information fully. The MSNBC link contains statements from Fish, the juror, several character witnesses and the prosecutor.

http://www.msnbc.msn.com/id/15199221/

http://www.haroldfishdefense.org/welcome.htm

There are several key mistakes that Harold Fish made:

1. Talking with the police without an attorney present.

2. Not taking specific notes after the incident and during his conversations with the police. He should have tape recorded what he said to the police for his own records. He made inconsistent statements that contradicted what he said to the police thereafter.

3. Utilizing a caliber that the local police department does not use.

4. Not attempting to back away or avoiding the situation.

5. Not warning the victim that he was about to fire if he did not stop.

There are also some things to be said about the victim. Using hostile or aggressive conduct and temperment against a man with a pistol in his hand is never something you want to do. The victim should have kept his hands in the open and walked backwards from Harold Fish talking in a calm manner.

If I was in the victims position, then when I heard the shots I would have tried to find cover behind a tree first. The first rule when you hear shots is to seek cover or go in the opposite direction of the shots. Then when addressing Mr. Fish, I would have spoken calmly from behind the tree and asked him to holster the weapon. Once the weapon is holstered, then I would come out from behind cover slowly with my hands to my side (but lifted slightly) and keep a distance of at least 25 feet. I would also not walk far from the cover position in the event I had to dive behind it if the weapon becomes unholstered.

So what could have Harold Fish or the victim done differently for a better outcome? This case is a great one to examine. Mr. Fish seemed to do everything he was supposed to do, but the outcome was indeed negative and he is still in prison to this day.

Lets say these were two armed Park Rangers or police from the local department in the forest and this scenario went down exactly as it did with Mr. Fish....would they have been treated any differently?

[Steve in PA]

His lawyer screwed the pooch.

[csmsss]

From what I can see, Fish was railroaded good and proper.

[Sparks2112]

Bad lawyer + Bad Law (later changed) = prison term

[Brian Pfleuger]

3. Utilizing a caliber that the local police department does not use.

How could that possibly matter?

[JohnH1963]

The prosecution is going to throw anything against you that they can find.

In this case, one of their arguments was the caliber of the pistol was more then what was required to take down the defendant. They said during the trial that it was more powerful then what the police use. They also pointed out the use of hollow-points. One of the jurors questioned in the interview said that his choice of pistol and ammo did help in swinging their decision.

If you utilize a weapon or caliber that the local police do not use then there is that risk the prosecution will use it against you somehow. Where as if you utilize a weapon and caliber that the local police use, then its a hard argument to make that this was an unreasonable weapon. In fact, if the prosecution makes that argument then they are basically hanging their local police department. You can call witnesses from the local police department to refute that argument.

By using the same weapons as the police, you are acting more reasonably. This case has been studied by other prosecutors out there and you know that that argument will be brought up again.

[Brian Pfleuger]

I think that goes back to a sucky lawyer. 10mm is a conventional caliber.

[csmsss]

By using the same weapons as the police, you are acting more reasonably.

That, sir, is pure nonsense. We drive different vehicles than the police do, we wear different clothing than the police do, etc. etc. The prosecutor was guilty of misconduct for making this argument, as was the judge for allowing it to be heard by the jury. We are each of us entitled to use any legally owned firearm we wish to defend ourselves.

[alloy]

#1 was the first thing he did wrong, not exactly a traffic ticket.

[RamSlammer]

Bad law (now changed). Judicial error. Reprehensible prosecutor. Bleeding heart pacifist jurors. A medical examiner with an agenda as a witness.

Sounds like Mr. Fish encountered a perfect storm. I would think and hope he wins the appeal.

[dstyle47]

many thoughts on this case...mostly of outrage
random thoughts on case:

it seems to me he just got caught up in a system that was more interested in prosecuting than justice....

i also don't think it helped that he was judged by people who just don't understand guns, one juror admitted having "dangerous" hollow points was an important factor in the decision of finding him guilty "why should that matter, so would him having a small 22 pistol which would not be sutable animal self defense, make him less guilty in this jurors eyes?, the icing on the cake of stupidity would have to go to the interviewer Larson:

"Larson: Why not fend him off? You have a gun in your hand and if nothing else that’s heavy metal. Hit him."

his response should have been, "yes i carry my gun around to club people with."-just like in hollywood!
-and do people honestly think that in this situation when you are armed-you should duke it out fist to fist with a person intent on doing you harm. i can say that if thats what these jurors expected him to do...and in the event of a fist fight i would certainly not place my money on a 57 year old retired school teacher.
sad times.....

[scorpion_tyr]

The whole story is wrapped up in the last paragraph about the law. At the time of his trial the law was that the defendant had to prove he acted in self defense. Mr. Fish could not do that. Now the law has changed, thankfully. From the information in the story, would I do the same thing in his shoes? Absolutely. There's so much wrong with what happened I could write a book about it. To keep thing short I'll stick with what was added in the original post.

1. Talking with the police without an attorney present.

Yes that was a mistake. One that most people might make though. If you use lethal force in self defense your best option is to say something along these lines: "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."

2. Not taking specific notes after the incident and during his conversations with the police. He should have tape recorded what he said to the police for his own records. He made inconsistent statements that contradicted what he said to the police thereafter.

This is good advise, but seriously... who would think of doing this? I would not.

3. Utilizing a caliber that the local police department does not use.

Seriously? What caliber did the local police use? I'm assuming it was 9mm since a 10mm would have been considered less than anything else I've ever seen LE carry. So I have to carry the exact same caliber that the police use? That's absurd for many reasons. When hiking in the woods I would have something more powerful than a 9mm because there are some animals that are a lot bigger than humans (standard police target), especially where he was hiking. I'll let everyone else tear this one apart, I don't have the time.

4. Not attempting to back away or avoiding the situation.

Seriously? This guy and two dogs were in between him and his car. Where was he supposed to go? How was he supposed to back away or avoid an angry man who was yelling at him and charging him? Was the person physically handicapped and not able to run very well? That's the only way I would be sure I could outrun the person. There was nothing prior to the dogs attacking him that would make him avoid the situation. I know I can't outrun dogs, can you? Would you turn your back to two attacking dogs? By the time he realized the situation he was in it was impossible to avoid it or back away.

5. Not warning the victim that he was about to fire if he did not stop.

He didn't? Well he fired at the dogs proving two things, the weapon was loaded and he was willing and able to fire it. Then he pointed it at the other man. Someone shoots a gun and then points it at me? That's a pretty big warning to me, and I would stop and think about what I was doing. With an adult male chargin angrily at me I don't think that verbally warning him would be the first thing on my mind. I probably wouldn't do it. I didn't see how close they were to each other, but the average man can cover a lot of ground in the 2-5 seconds it takes to verbalize a warning.

Mr. Fish seemed to do everything he was supposed to do, but the outcome was indeed negative and he is still in prison to this day.

Didn't you just list 5 things you think he did wrong? The only thing I can see that he did wrong was not asking for legal council.

I'm not trying to bash on you John. The only thing we disagree on is the number of mistakes Mr. Fish made. Should he be in prison right now? No. There were several things that the jury should have picked up on. This man became very angry when confronted by authority officials about his dogs. In the woods with no witnesses would this man have killed a civilian? From the information in the story I believe he would have. Did the jury act accordingly? In my opinion they did not. Legally speaking they did. This is why it's a good idea to be aware of what the state and local laws are concerning lethal force.

Thanks for the post John, it was an interesting story to examine! I disagree with you on many things, but the bottom line is that we both agree on whole concept of the story. Perfect case of "Better to be judged by 12 (8 in this case) than carried by 6."

[JohnH1963]

I agree there is nothing wrong defending yourself with whatever weapon you have, but at the same time you have to make your case as presentable as possible. You know that the prosecution will exploit any weakness in your case.

The weapon you use is going to be held up in front of the jury, the bullets will also be held up too in front of the jury. Lets say you used an assault rifle with a bayonet attached at the end to defend yourself. That weapon is going to be held up in front of the jurors. I agree its your right to use that weapon, but at the same time, it makes you look like a nut and your credibility is going to fall from there. Where as if you use the same weapon and same rounds as the local police department, then the prosecution has no leg to stand on. They cant make their own department look bad by second guessing the gun you used.

In these incidents, there are always things we can improve upon. I think its a big mistake to approach a man with a pistol in his hand in a hostile manner. I think its perfectly justified to shoot someone who is running at you while your gun is drawn. The person running at you should have more common sense. Its like running straight on at a bus.

However, you have to present and justify yourself in front of a judge or jury knowing that the prosecution is going to pull your pants down and use everything they can to make you look bad.

One notable remark was from the 26 year public safety official from the university. He said in his 26 years that this guy stood out because of the way he reacted and he had never encountered anything like it.

[scorpion_tyr]

Very true. Sorry if some of my anger over the case spilled over on ya, that was the last of my intentions. I guess if all the local law enforcement carry the same caliber, it would be a good idea to carry the same. The area I live in, an officer can carry whatever he wants as long as its 9mm or bigger, so I never really thought about it. After all, shot placement always beats caliber.

[Gentleman Ranker]

JohnH1963 #14 opines:

Where as if you use the same weapon and same rounds as the local police department, then the prosecution has no leg to stand on. They cant make their own department look bad by second guessing the gun you used.

True enough, so far as it goes. I do wonder if a prosecutor couldn't also take the tack that, since you were using what the police use, you must be some kind of cop-wannabe trying to be a freelance punisher of the wicked.

A clever lad with an agenda can put you in a bad light no matter what you do.

regards,

GR

PS: For the record, I carry the same pistol/ammunition combination my local PD uses, but not necessarily for the reason under discussion.

[JohnH1963]

The part that makes me a little angry is that there have been other self-defense cases in the United States that were clearly negligent, but the guy with the firearm was found not to be guilty.

For example, I think it was in a small town in the Carolinas where a 17 year old ran up to the front door of a house on Halloween thinking that the party was there. He made a mistake and this was the wrong house. He knocked on the door and then the homeowner shot through the door and the 17 year old was killed.

The homeowner was found not to be guilty. In my eyes, that was clearly negligent and probably more so murder then manslaughter. It was Halloween night. A young man in a costume knocks on your door and so you shoot through the door?

This case was clearly questionable. You have this 57 year old school teacher who is a model citizen and there were never problems before with this man. Then you have a homeless man who has a clear history of hostile behavior towards others. In fact, even his ex-boss said that this guy would act hostile at his work towards himself and co-workers. You can just picture the homeless guy charging at the teacher in anger. In the middle of the forest with no one around who knows what would have happened...

[ActivShootr]

His lawyer screwed the pooch.

That pretty much sums it up.

[csmsss]

I do wonder if a prosecutor couldn't also take the tack that, since you were using what the police use, you must be some kind of cop-wannabe trying to be a freelance punisher of the wicked.

Bingo. The very idea that a prosecutor is engaged in this sort of argument when discussing a legally owned firearm and cartridge is something I consider to be misconduct. The fact that a judge allowed him to get away with it is some of the worst jurisprudence I've ever heard of.

This is the sort of nonsense one can expect to see at a civil trial, but should never, ever have been permitted to occur in this case in a criminal trial.

[TacticalDefense1911]

If in fact, Fishs' story is true, he did everything right. He defended himself from the dogs without injuring them. He retreated from a threat till he could retreat no more. If Kuenzli threatened Fish with bodily harm and Fish was fearful for his safety then he acted within his rights of the law. I'm sorry but Fish did not have to know if Kuenzli was armed or not. Unfortunately, for Fish, this incident is a good example of why you do not talk to the police until you have a lawyer; it gives you time to calm down and think more clearly and to go over the events in your head. People can say things they dont really mean in a high anxiety situation. If this case was decided upon what gun and ammunition Fish used, shame on the jury and shame on the justice system.

My favorite quote from the interview done by MSNBC is the following. It truely depicts the naitivity of the mis-informed and anti-gun establishment.

Lessler: Mr. Fish knew well what a hollow-point bullet does.

Larson: And the end product of his shooting is going to be death?

Lessler: Yes.

[alloy]

my thinking exactly.

i would be babbling after this type of event, in shock nearly, maybe? i have no experience with it, but a lawyer needs to be helping, cause its gonna go to court? how friendly the police are at the time...they arent the prosecutor, and it will be the top prosecutor in the area handling the high profile 2a/self defense/murder case.

get a lawyer. then get a better lawyer that specializes would be this laymans .02

[Musketeer]

3. Utilizing a caliber that the local police department does not use.

You do realize that an agency no less prestigious than the United States FBI specifically chose that round after millions of dollars in tests and issued it to all its officers?

Of course Fish's incompetent lawyers didn't bother to defuse the caliber issue with any intelligence, or do much else right.

Bad lawyers will send you to jail and Fish had two of them.

[Musketeer]

My question is...

Is Mr. Fish on the list for a Presidential Pardon?

The law has been changed since his shooting and he clearly was the victim of incompetent lawyering. If Bush is as big a supporter of CCW as he claimed to be he should step up to the plate here (if it has been brought to him.).

[nazshooter]

About caliber and bullet type:

It seems like if Fish's lawyer had recognized that the jury would care about the caliber and bullet type used it wouldn't have been hard to find an officer in a jurisdiction where 10mm are standard issue. I don't know if hollowpoints are standard for most PDs but they are certainly very common.

[MK11]

The point isn't whether caliber/ammunition is a ridiculous thing to focus on, IT WAS. The prosecution will use whatever it can to make it's case. Remember, Fish wasn't even charged until a group of "dog lovers" started putting pressure on the DA to file charges (and the DA somehow suppressed testimony that the man Fish shot had a severe anger problem and had threatened others in the past).

Forget Law & Order reruns. Just like with defense attorneys, the object for most DAs isn't justice, it's to win.

[David Armstrong]

That, sir, is pure nonsense. We drive different vehicles than the police do, we wear different clothing than the police do, etc. etc. The prosecutor was guilty of misconduct for making this argument, as was the judge for allowing it to be heard by the jury. We are each of us entitled to use any legally owned firearm we wish to defend ourselves.

Just as the jury is entitled to use any legally presented evidence they wish in deciding your fate, which means that far from "pure nonsense" it is actually pretty good advice.