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Old May 18, 2009, 12:38 PM   #1
VA9mm
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Harold Fish Case Arizona

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.
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Old May 18, 2009, 12:42 PM   #2
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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.
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Old May 18, 2009, 01:01 PM   #3
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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.
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Old May 18, 2009, 02:03 PM   #4
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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.
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Old May 18, 2009, 02:09 PM   #5
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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.
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Old May 18, 2009, 02:23 PM   #6
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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.
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Old May 18, 2009, 02:35 PM   #7
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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?

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

Quote:
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?
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Old May 18, 2009, 05:22 PM   #8
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Originally Posted by grymster2007
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.

Quote:
Originally Posted by grymster2007
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.

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Originally Posted by grymster2007
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.

Quote:
Originally Posted by grymster2007
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.
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Old May 18, 2009, 06:04 PM   #9
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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.
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Old May 18, 2009, 07:32 PM   #10
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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!
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Old May 18, 2009, 07:58 PM   #11
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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.
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Old May 18, 2009, 10:57 PM   #12
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Originally Posted by Tom Servo
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.

Quote:
Originally Posted by hogdogs
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
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Old May 18, 2009, 11:46 PM   #13
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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.

Quote:
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.
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Old May 19, 2009, 09:49 AM   #14
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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.
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Old May 19, 2009, 09:55 AM   #15
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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.
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Old May 19, 2009, 12:00 PM   #16
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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.
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Old May 19, 2009, 12:49 PM   #17
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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.
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Old May 19, 2009, 01:28 PM   #18
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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.

Quote:
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.
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Old May 19, 2009, 01:32 PM   #19
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Citations?
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Old May 19, 2009, 01:36 PM   #20
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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.
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Old May 19, 2009, 01:38 PM   #21
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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?
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Old May 19, 2009, 01:47 PM   #22
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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.
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Old May 19, 2009, 01:53 PM   #23
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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.
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Old May 19, 2009, 02:02 PM   #24
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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.
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Old May 20, 2009, 07:32 AM   #25
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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?
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