The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Closed Thread
 
Thread Tools
Old July 6, 2009, 09:18 PM   #51
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,319
nazshooter, I think you mean the Arizona Court of Appeals. Not the State Supreme Court.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old July 6, 2009, 09:37 PM   #52
PT111
Senior Member
 
Join Date: July 30, 2007
Posts: 1,041
Quote:
Quote:
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.
No one knows what it was going to be. I am only saying what his actions have been in the past and when it is said that he always behaved that way but never hurt anyone it can be damaging as much as helpful.

As nazshooter points out that the main advantage of the testimony is to help confirm the story of Mr. Fish and that he was telling the truth. Just like the barking dog that comes at you and the owner tells you "He won't bite". He may not have ever bitten anyone but there is the possibility of a first time. You shoot the dog and stand before a jury to tell them that the dog was about to bite you. The owner says yes he was barking like he always does but had never bitten anyone. That is going to put doubt in the mind of the jurors as did you overreact.
PT111 is offline  
Old July 6, 2009, 09:58 PM   #53
nazshooter
Senior Member
 
Join Date: November 7, 2008
Posts: 151
Quote:
nazshooter, I think you mean the Arizona Court of Appeals. Not the State Supreme Court.
You're right, thanks.
nazshooter is offline  
Old July 6, 2009, 10:24 PM   #54
mavracer
Senior Member
 
Join Date: February 27, 2008
Location: midwest
Posts: 3,084
Quote:
As nazshooter points out that the main advantage of the testimony is to help confirm the story of Mr. Fish and that he was telling the truth. Just like the barking dog that comes at you and the owner tells you "He won't bite". He may not have ever bitten anyone but there is the possibility of a first time. You shoot the dog and stand before a jury to tell them that the dog was about to bite you. The owner says yes he was barking like he always does but had never bitten anyone. That is going to put doubt in the mind of the jurors as did you overreact.
once again nobody told Mr. Fish that Kuenzli would just run up and flail his arms get angry and just make you think he was going to kill you and then stop and the first jury was not allowed to hear all of Mr. Kuenzli behavior.
I guess my point is it shouldn't be damaging to Mr Fish.
__________________
rather be judged by 12 than carried by 6
Quote:
originally posted my Mike Irwin
My handguns are are for one purpose only, though...
The starter gun on the "Fat man's mad dash tactical retreat."

Last edited by mavracer; July 6, 2009 at 10:27 PM. Reason: add last statement
mavracer is offline  
Old July 6, 2009, 11:45 PM   #55
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by mavracer
I guess my point is it shouldn't be damaging to Mr Fish.
PT 111 makes a great point. It depends on how the jury takes it. Ultimately they will decide it. If they look at the incidents of Kuenzli and find them bizarre but not dangerous it might go bad for Fish. Also, when Kuenzli had those previous outbursts, nobody shot him, called the police or tried to defend themselves. See how it cuts both ways? The jury may say; "Well Kuenzli was strange but he shouldn't have died for that" and no matter what anyone on TFL says that will be the way it goes down for Mr. Fish.

Quote:
Originally Posted by OuTcAsT
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.
That is not what he is saying. Read again and you will see what he is saying is that you cannot just claim self-defense and sit back and make the prosecutor prove it was not. And as Mas Ayoob said, you'll have to prove it to the jury that you acted reasonably or you will go down. Fish may have a problem doing that.

Quote:
Originally Posted by OuTcAsT
I'm sorry, but doesn't an "affirmative defense" of self defense already admit that you have killed (or injured) someone,
You left out a key phrase and that was criminal intent. Yes an affirmative defense stipulates that you did the killing and what Mas says is regardless of how the states handle burden of proof you will have to proof and convince the jury you acted reasonably. What he is saying is the claim of self defense does not make it easier or harder for the prosecution to win.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 12:30 AM   #56
Nnobby45
Senior Member
 
Join Date: November 20, 2004
Posts: 3,150
Quote:
Virtually every action taken in that entire incident, by both parties, was wrong. Problem being, when you use a gun, "wrong" becomes "killer".
I suspect that if Peezakiller ever supported a citizen defending his life, I'd likely spit my Red Bull all over my new Dell Monitor.

Arizona passed a law that would have made Mr. Fish's actions lawful if it had been in affect at the time.

Correct me if I'm wrong, but wasn't the law passed before he went to trial?

I've read Ayoobs account, and it's obvious that Mr. Fish was convicted largely on an incompetent attorney's inability or unwillingness to simply refute the prosecuters contention that the use of a powerful 10mm was over- kill--while painting Mr. Fish as something he was not-- a violent individual with a killer gun. Not a peep out of his bozo attorney in rebuttle.

Don't think he'll be convicted again with competent council.

Harold Fish:
http://backwoodshome.com/blogs/MassadAyoob/2009/07/

Last edited by Nnobby45; July 7, 2009 at 12:40 AM.
Nnobby45 is offline  
Old July 7, 2009, 06:56 AM   #57
mavracer
Senior Member
 
Join Date: February 27, 2008
Location: midwest
Posts: 3,084
Quote:
Also, when Kuenzli had those previous outbursts, nobody shot him, called the police or tried to defend themselves.
actually there were many police reports and Mr. Kuenzli had lot's of trouble with the law.these were the facts that were suppressed in the first trial.now your trying to suppress them here. Judge Moran is that you
__________________
rather be judged by 12 than carried by 6
Quote:
originally posted my Mike Irwin
My handguns are are for one purpose only, though...
The starter gun on the "Fat man's mad dash tactical retreat."
mavracer is offline  
Old July 7, 2009, 07:01 AM   #58
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by Nnobby45
Arizona passed a law that would have made Mr. Fish's actions lawful if it had been in affect at the time.
Actually that is not correct. The law just shifted the burden of prove to the state when some uses the affirmative defense of self defense. Based on what I read I doubt it would have made much difference based on what the jurors said after the trial. Same for the 10 MM and hollow point bullets. The jurors felt Fish overreacted when he killed Kuenzli and convicted him as a result.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 07:11 AM   #59
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by mavracer
actually there were many police reports and Mr. Kuenzli had lot's of trouble with the law
Other than an issue with his girlfriend and a threatened suicide what other police reports? Maybe you should check out the facts more?

BTW 10 people took the stand and testified about Kuenzli having a hot temper and being aggressive and violent and the jury still convicted him. Not everything was witheld from the jury.

Statement from Juror:
Quote:
We wondered if the jurors had known more about Grant Kuenzli’s past, would it have made a difference to their verdict?

Elliot: We still had the evidence of this incident, at this scene, at this moment. And all those things, while damaging to Mr. Kuenzli’s character, have nothing to do with what happened on May 11th, 2004 out in the woods between Mr. Kuenzli and Mr. Fish, and the evidence that was presented to us.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 07:30 AM   #60
mavracer
Senior Member
 
Join Date: February 27, 2008
Location: midwest
Posts: 3,084
Quote:
Other than an issue with his girlfriend and a threatened suicide what other police reports? Maybe you should check out the facts more?
Quote:
Steve Corich is the director of public safety at Mesa Community College. One morning in 2003, a security officer found Kuenzli walking his dog on campus without a leash. When the officer confronted him, Kuenzli became agitated.

Steve Corich, director of public safety at Mesa Community College: He was loud. His fists were clenched. All of his body language essentially conveyed that he was extremely angry. And it took quite a while to calm him down.

In his 26-year career, Corich says Grant Kuenzli stands out.

Corich: He had one of the hottest and quickest boiling points of any of the people I’ve ever dealt with.

Clayton Hamblen, justice of the peace: His look was one of “I would like to rip your throat out.”

Clayton Hamblen has been a justice of the peace in West Mesa for 15 years. One day, Grant Kuenzli showed up for a court hearing with his dog, when Hamblen suggested he leave the dog outside. He says the dog owner became aggressive.

Hamblen: He began to clench his fists. His eyes got a look that was just almost downright scary.

Hamblen says Kuenzli seemed more concerned for the well being of his dog than people.

Hamblen: I said “The man is either going to kill somebody or somebody is going to kill him.” And that was my feeling… that was just a gut reaction.
I would assume these are both reported since they are reports of confrontations with officers.
Quote:
Not everything was witheld from the jury.
except enough for the appeals court to throw out the verdict and demand a retrial.
__________________
rather be judged by 12 than carried by 6
Quote:
originally posted my Mike Irwin
My handguns are are for one purpose only, though...
The starter gun on the "Fat man's mad dash tactical retreat."

Last edited by mavracer; July 7, 2009 at 07:35 AM.
mavracer is offline  
Old July 7, 2009, 09:32 AM   #61
RDak
Senior Member
 
Join Date: October 17, 2004
Location: Michigan
Posts: 734
TG and PT111:

The jury was not allowed to consider prior acts of violence in determining who was the initial agressor. Kuenzli was clearly a violent person and had the jury been allowed to consider this fact to determine Fish's state of mind, as to what was transpiring before his eyes, they could very well have found Kuenzli the first aggressor.

The appellate court stated the victim's prior agressive behavior was "highly sanitized" and provided the jury with none of the information indicating "how violent or agressive the victim had become over the confrontation with his dogs...... that he was irrationally agressive and violent and extremely frightening.....that the victim, when upset, would get a 'wild look' and 'flail his arms in an agressive manner'....The jury only heard from witnesses that they thought the victim had a reputation that he was violent or agressive........and (only heard) in several instances undescribed incidents had occurred with the victim's dogs".

The appellate court went on to state, in so many words, that denying specific and detailed prior violent behavior of Kuenzli, denied Fish the chance to present "crucial" corroborating evidence that he was confronted by a "wild eyed man, flailing his arms and fists and threatening to hurt Fish". This was "crucial to the justification defense" according to the appellate court.

Then, the appellate court stated, the lower court erred when not explaining that appropriate self-defense actions include perceived threats of actual physical attack, as well as, attempted use of unlawful physical force.

In other words, the appellate court concluded it is ok to use deadly force to prevent a forcible felony. (The jury was not told it is ok to use deadly force if a violent felonious act is about to be committed, [i.e., it's only ok when it is ACTUALLY being committed, or something to that effect].)

The appellate court went on to state Fish's testimony to the police, witnesses and the grand jury were reasonably consistent and footprints showed Kuenzli was moving towards Fish and Fish shot Kuenzli when he was very close.

All that evidence, taken as a whole, along with the serious evidence withheld from the jury, coupled with totally deficient jury instructions, resulted in the appellate court concluding the jury should have been instructed to accept the prevention of violent attack as a justifiable defense.

The appellate court stated an individual can make an aggravated assault without ever physically contacting his or her intended victim. The jury was never told Fish could use deadly force to prevent the aggravated assault before he was physically hurt or had endured actual physical contact.

Finally, the lower court even erred when it failed to instruct the jury that attacking dogs can be considered dangerous weapons. (I'm beginning to think the lower court judge is a loon.)

The appellate court stated a dog can be considered a dangerous instrument (well duh!!) and, the owner doesn't have to order his dog to attack to avoid responsibility or suspicion. (Well, once again, duh!!)

Due to these extremely serious mistakes made by the lower court judge, the appellate court reversed the conviction and sentence.

TG and PT111: Now, just for entertainment purposes, with what the appellate court basically concluded from the above paragraphs, do you guys still think there is no reasonable doubt that Fish is a murderer?

I mean, "come on now"!?

http://www.scribd.com/doc/16994567/Harold-Fish

Last edited by RDak; July 7, 2009 at 09:43 AM.
RDak is offline  
Old July 7, 2009, 09:32 AM   #62
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by mavracer
I would assume these are both reported since they are reports of confrontations with officers.
Not necessarily, neither of those incidents you mention would have produced police reports. Was Kuenzli arrested in either of these instances? Again, when I see posters saying he "was a violent criminal" and "evidence of his behavior was witheld from the jury" the facts of trial don't back that up. My point is not that Kuenzli was an angel, apparently he was a kooky guy. That doesn't in and of itself warrant a death sentence. You still have to show that you acted reasonably. The jury thought otherwise and you just read the comments of one that character was not the issue, only what happened that day.

Quote:
Originally Posted by mavracer
except enough for the appeals court to throw out the verdict and demand a retrial.
For more issues than just Kuenzli's character. Fish is still in jeopardy and as I have stated before; whether he gets out of prison or not the lesson we as responsible CCW folk should learn is that you need to think out now how andwhen you might use deadly force. Go to the gun too quickly and you might end up like Fish, in prison and broke. I am reminded of an old irish epitaph;

Here lies the body of Daniel O'Day,
Who died defending his right-of-way,
His right was right and his will was strong,
But he's just as dead as if he'd been wrong.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 09:44 AM   #63
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by RDak
TG and PT111: Now, just for entertainment purposes, with what the appellate court basically concluded from the above paragraphs, do you guys still think there is no reasonable doubt that Fish is a murderer?
What the appellate court concluded was that the trial court made errors in the first trial of Harold Fish. The appellate court did not say there was reasonable doubt as to the guilt of Harold Fish.

To answer your question I have doubt based on the material I have read (like you not being privy to the entire bank of evidence) that Fish acted reasonably. My point has been and will continue to be that I don't believe Fish had to shoot Kuenzli and had he not used his gun to begin with the situation would not have gotten out of hand. That is my opinion and I think the message to all of us is to use the gun only as a last resort or possibly face the nightmare that Fish has had to face. Obviously some here differ with my view and that is OK but remember that the jury will decide your fate, not the posters on this forum and they will probably not be gun nuts.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 10:00 AM   #64
RDak
Senior Member
 
Join Date: October 17, 2004
Location: Michigan
Posts: 734
Well I obviously disagree with your conclusion on reasonable doubt but agree that we can be subject to jurors who will continually "fight the facts" and let their personal intuitions or individually perceived evidence interpreting "abilities" override those facts as presented to them.

On that, we wholeheartedly agree.

(Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!)

But I did make some inroads with you when you state that you have "doubts" Fish acted reasonably. I assume you now feel there is reasonable doubt that Fish is a murderer?

Murderer is the question TG. You also state you "don't believe" Fish should have shot Kuenzli. "Don't believe" isn't strong enough to conclude "no reasonable doubt" is it?

Finally, as to not having access to the "entire body of evidence", I made my comments by directly analyzing the appellate court decision. They had access to the entire body of evidence and made the main conclusions I outlined in my previous post.

Last edited by RDak; July 7, 2009 at 10:20 AM.
RDak is offline  
Old July 7, 2009, 10:48 AM   #65
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,904
Quote:
Originally Posted by RDak
...Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!...
No! The appellate court absolutely did no such thing. The appellate court found reversible error, defects in law or procedure that warrant a new trial. Such a finding is not by any means a comment on the merits of the case.

Personally, from what I know of the case I think that Fish had an excellent claim of self defense based on disparity of force. And it also struck me that errors in law and procedure by the trial judge hampered Fish's presentation of his defense.

It seems that the appellate court agrees that errors by the judge at trial impaired Fish's defense case. But to characterize the appellate court ruling as a finding of reasonable doubt is to demonstrate a fundamental lack of understanding of the law and the legal system.

Last edited by Frank Ettin; July 7, 2009 at 11:10 AM.
Frank Ettin is offline  
Old July 7, 2009, 10:59 AM   #66
PT111
Senior Member
 
Join Date: July 30, 2007
Posts: 1,041
Rdak, I never said that Mr. Fish was a murderer and I never said that Mr. Kuenzli was an angel. Please read carefully the quote from whereever it came from.

Quote:
Steve Corich is the director of public safety at Mesa Community College. One morning in 2003, a security officer found Kuenzli walking his dog on campus without a leash. When the officer confronted him, Kuenzli became agitated.

Steve Corich, director of public safety at Mesa Community College: He was loud. His fists were clenched. All of his body language essentially conveyed that he was extremely angry. And it took quite a while to calm him down.

In his 26-year career, Corich says Grant Kuenzli stands out.

Corich: He had one of the hottest and quickest boiling points of any of the people I’ve ever dealt with.

Clayton Hamblen, justice of the peace: His look was one of “I would like to rip your throat out.”

Clayton Hamblen has been a justice of the peace in West Mesa for 15 years. One day, Grant Kuenzli showed up for a court hearing with his dog, when Hamblen suggested he leave the dog outside. He says the dog owner became aggressive.

Hamblen: He began to clench his fists. His eyes got a look that was just almost downright scary.

Hamblen says Kuenzli seemed more concerned for the well being of his dog than people.

Hamblen: I said “The man is either going to kill somebody or somebody is going to kill him.” And that was my feeling… that was just a gut reaction.
In neither case did Mr. Kuenzli harm anyone. He scared the stuffings out of them but never harmed them.

As we know Mr. Fish was walking along minding his own business.

Two (or three?) dogs start charging at him barking and growling. Mr. Fish is scared witless right then.

He pulls out his pistol and fires a warning shot into the ground.

The dogs trun away.

Mr. Kuenzli comes running down the hill cussing and waving his arms.

Is Mr. Kuenzli armed? They found a screwdriver in his pocket but he never showed it to Mr. Fish. Mr. Fish didn't know if he was armed and had no reason to think he was armed. In other words Mr. Kuenzli was not armed excpet with his fists.

Did Mr. Kuenzli exhibit the same actions that he had in previous encounters over his dogs. YES! There will be several witnesses to testify to that just as Mr. Fish described.

Would Mr. Kuenzli have harmed Mr. Fish? If were are to believe that he exhibited the same behavior that had in the past the answer would be no. There was not reason to think that Mr. Kuenzli would have harmed Mr. Fish based on past behavior.

Did Mr. Fish know that? No, and there was no reason to think that he did know it.

Mr. Fish fired a warning shot at the dogs and they turned away. Did he fire a warning shot at Mr. Kuenzli? I don't recall that he did and some may question why dind't he.

Was Mr. Fish in fear of his life from Mr. Kuenzli? I am not sure if he was in fear of his life or was he just afraid of getting hurt.

What we know is that a crazy man that scares everyone around him concerning his dogs finally runs into a man that is carrying a gun. He exhibits the exact same actions toward the man with a gun that he has exhibited toward many other people. No one has ever goten seriously hurt until he finally runs into the man with a gun.

Mr Kuenzli acted the exact same way toward Steve Corich, director of public safety at Mesa Community College that he acted toward Mr. Fish. However Mr. Corich did not shoot him.

He acted the same way toward Clayton Hamblen as he did toward Mr. Fish but Mr. Hamblen did not shoot him.

I really don't think the added testimony of others is going to help Mr. Fish as much as most of you are trying to say it will.

As for the technicalities of the law on what is an attack or assault etc. I don't know and can't even give an opinion on. But if Mr. Fish elects to have a new trial the jury is going to have to discuss all of this and reach a conclusion.
PT111 is offline  
Old July 7, 2009, 11:01 AM   #67
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
Quote:
Originally Posted by RDak
but agree that we can be subject to jurors who will continually "fight the facts" and let their personal intuitions or individually perceived evidence interpreting "abilities" override those facts as presented to them.
And there my friend is the rub. You see, I am a pragmatist and I don't want my financial health or freedom in the hands of those cats if I can possibly help it. Whether we agree with the system or not it is what we will be judged by. Therefore, I find it very important to do everything I can to avoid the process. I bet Fish wishes that as well.

Quote:
Originally Posted by RDak
(Of course the appellate court ruled there was reasonable doubt by reversing the conviction and sentence. They merely gave the prosecutor another chance to try this case before the lower court. Geez, TG!)
See fiddletown's comments. You need to learn the law RDak as your life may depend upon it.

Quote:
Originally Posted by RDak
But I did make some inroads with you when you state that you have "doubts" Fish acted reasonably. I assume you now feel there is reasonable doubt that Fish is a murderer?
Sorry but I have always felt the Fish case was a "bad shoot" and doubted the claim of self-defense. However, I have no problem with the appellate court reversing the trial court and allowing more evidence to be produced. I still think Fish overeacted based on what evidence I have read therefore...

Quote:
Originally Posted by RDak
Murderer is the question TG. You also state you "don't believe" Fish should have shot Kuenzli. "Don't believe" isn't strong enough to conclude "no reasonable doubt" is it?
If you kill another human being intentionally and cannot support the claim of self defense what would you call it? I call it murder. As I have said (and I did read a lot about Kuenzli the jury did not) I have no problem with the original verdict reached by the jury. Bottomline for me; Go to the gun last not first.

Quote:
Originally Posted by RDak
Finally, as to not having access to the "entire body of evidence", I made my comments by directly analyzing the appellate court decision. They had access to the entire body of evidence and made the main conclusions I outlined in my previous post.
What they did not do was find reasonable doubt of Fish's guilt. Only the jury can find issues of fact. Therefore you are still as much in the dark about the entire body of evidence as I.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.
Tennessee Gentleman is offline  
Old July 7, 2009, 11:12 AM   #68
Tennessee Gentleman
Senior Member
 
Join Date: March 31, 2005
Location: Tennessee
Posts: 1,611
PT111,


Quote:
Originally Posted by PT111
I really don't think the added testimony of others is going to help Mr. Fish as much as most of you are trying to say it will.
Very good post and I agree. Actually, one of the jurors did question why Fish did not fire a warning shot for Kuenzli. The quote was something like: "He fired a warning shot for the animals but not the man". Many folks on TFL and Instructors don't like arning shots. I don't either and IMO the first warning shot fired by Fish started the party. If Fish had not fired that shot and just warded off the dogs with his walking stick maybe Kuenzli would be alive today and Fish would be free.

Quote:
Originally Posted by PT111
What we know is that a crazy man that scares everyone around him concerning his dogs finally runs into a man that is carrying a gun. He exhibits the exact same actions toward the man with a gun that he has exhibited toward many other people. No one has ever gotten seriously hurt until he finally runs into the man with a gun.
Great summary and for those of you nice folk out there in TFL land who will say silly things like; "Good Riddance" or "Cleans out the Gene Pool" just remember that Joe and Jane Jury might not buy that and to prison you may go if you act accordingly. Also the idea that those of us who own guns are doing society a favor by killing people like Mr. Kuenzli might need to reevaluate their morals or the jury may do it for you.
__________________
"God and the Soldier we adore, in time of trouble but not before. When the danger's past and the wrong been righted, God is forgotten and the Soldier slighted."
Anonymous Soldier.

Last edited by Tennessee Gentleman; July 7, 2009 at 11:52 AM. Reason: spelling
Tennessee Gentleman is offline  
Old July 7, 2009, 11:28 AM   #69
Big Ugly Tall Texan
Senior Member
 
Join Date: June 25, 2009
Location: El Paso, Texas
Posts: 174
Interesting story and post

That gives much to think about.

Shoot, don't shoot can be a very close call and can be a no win situation.

Often a man can be angry or drunk or whatever and be a totally different person than they would be normally. Many times when I was a police officer, I would have to fight a person I knew who was intoxicated or angry or both.

Almost without exception, after they had calmed down, they would look me up and apologize for their behavior - while rubbing the bruises and cuts they got in our altercation. And I could tell they were genuinely sorry for their behavior.

A few times, their actions would have justified the use of deadly force - but I withheld such force - perhaps foolishly - because I knew they were not behaving like they normally would. Those cases all worked out for the better, but they could just have easily gone bad.

One of my sergeants shot and killed a man he had known his entire life. The sarge's back-up was a deputy sheriff who was the man's cousin. But he was high on spray paint and came at them with a butcher knife so hard and so fast they saw no option except to pull their sidearms... and tragically in my sergeant's case, shoot the assailant/friend.

Another point RE: the following from fiddletown:

No! The appellate court absolutely did no such thing. The appellate court found reversible error, defects in law or procedure that warrant a new trial. Such a finding is not by any means a comment on the merits of the case.

It is my understanding that is all an appellate court ever does. They never rule on the merits of the case, simply on the way the trial was conducted. They determine if due process was followed.
__________________
Whether you like it or not, history is on our side. We will bury you! - Nikita Khrushchev
Nikita K. made the prediction. Barry O. will make it come true. - Big Ugly Tall Texan
"The 9mm Luger cartridge will simply not do for serious work." - Jeff Cooper
"Do not throw rocks at people with guns." - Hastings' Third Law
Big Ugly Tall Texan is offline  
Old July 7, 2009, 11:32 AM   #70
mavracer
Senior Member
 
Join Date: February 27, 2008
Location: midwest
Posts: 3,084
Quote:
Sorry but I have always felt the Fish case was a "bad shoot" and doubted the claim of self-defense. However, I have no problem with the appellate court reversing the trial court and allowing more evidence to be produced. I still think Fish overeacted based on what evidence I have read therefore...
I guess we'll have to agree to disagree.He may have overreacted in firing a warning shot at the dogs however I don't belive this act broke any laws.
In the previous reports Mr. Kuenzli became enraged when told to put a leash on his dog in the first case and that he couldn't bring his dog into court.
Nobody had ever shot a gun at his dogs before.IMHO it's reasonable to think Mr. Kuenzli was more enraged than ever and a physical confrontation was more likely than ever.
__________________
rather be judged by 12 than carried by 6
Quote:
originally posted my Mike Irwin
My handguns are are for one purpose only, though...
The starter gun on the "Fat man's mad dash tactical retreat."
mavracer is offline  
Old July 7, 2009, 12:00 PM   #71
johnwilliamson062
Senior Member
 
Join Date: May 16, 2008
Posts: 6,844
A household golden retriever can make one heck of a mess of someones arm. I have seen it on a boy cutting through a fenced back yard. Dog had no history of biting. Maybe the kid messed with the dog, IDK. It happens sometimes. Some breeds are worse, but dogs get confused as to the situation or are set off by some action and almost any breed can become volent. Anyways, the dog does not need to be trained to cause significant bodily harm, of that I am sure. That is like saying someone untrained in the use of a handgun will probably miss so you should not take them as a threat when they are trying to shoot you.

I think it is perfectly reasonable to assume there is reasonable chance the dogs would have responded to a physical confrontation. If they had there would have been a great disparity of force. The man was facing an aggressive adult male unknown to the person, and two dogs trained by the person and also aggressive. I am not sure I would shoot, but if the smoke cleared and I had shot I certainly wouldn't think to myself, "that was a terrible decision, they clearly were not a threat to you."

Quote:
A few times, their actions would have justified the use of deadly force - but I withheld such force - perhaps foolishly - because I knew they were not behaving like they normally would.
Doing so is an act of charity. You aren't required to do so by law and I won't judge you for failing to do so, but I will commend you if you do.
__________________
$0 of an NRA membership goes to legislative action or court battles. Not a dime. Only money contributed to the NRA-ILA or NRA-PVF. You could just donate to the Second Amendment Foundation
First Shotgun Thread First Rifle Thread First Pistol Thread
johnwilliamson062 is offline  
Old July 7, 2009, 12:37 PM   #72
RDak
Senior Member
 
Join Date: October 17, 2004
Location: Michigan
Posts: 734
Oh please guys, stop with the I don't understand the law and all that stuff. I've known for decades that appellate courts allow the prosecutor to retry cases like this that they have reversed, but I was going beyond that and making conclusions on the language used by the appellate court justifying their reversal.

The appellate court addressed numerous substantial weaknesses in the trial proceedings, and the judge's instructions to the jury, that made them conclude Fish did not get his fair day in court.

They, in essence, concluded that had the judge followed proper procedure, etc., the jury could very well have come to a different conclusion and, as a result, the appellate court reversed the conviction and sentence accordingly.

Had those errors not risen to the level of casting doubt on the "no reasonable doubt" verdict, (i.e., in the minds of the appellate judges), the appellate court would not have reversed the conviction and sentence.

They most definitely felt the outcome might have been for acquittal and that there was the definite possibility of reasonable doubt had the trial been conducted properly. That's why they reversed the conviction and sentence. That was their judgment.

There were many conclusions made by the appellate court indicating some of the lower court's interpretations and procedures didn't effect the fair decision making of the jury.

However, other errors by the lower court prevented the jurors from considering and knowing substantial facts, and law, that the appellate court concluded could have swayed them into decidinig there was reasonable doubt. Otherwise, as I stated, they would not have reversed the conviction and sentence.

Had these other errors been inconsequential, the appellate court would not have reversed the conviction or sentence.

The only way Fish can be convicted of murder now is for the prosecutor to open a new trial, present the required evidence, have the judge provide the proper legal instructions to the jury and let the jury decide if Fish is really a murderer.

Sure the prosecutor has another chance but, if you read the appellate court decision and come away thinking those appellate court judges felt Fish had no reasonable cause, then I question your reading and comprehension ability.

Let me put it another way, if I was the prosecutor I would not retry this case after reading the appellate court's opinion. The reason being the appellate court clearly felt the trial was unfair and prevented an honest outcome. That's why the conviction and sentence were reversed.

At least, that's what I would have done with cases assigned to me before I retired. An honest prosecutor, judge, or litigator, will read between the lines and realize there may have been a travesty of justice, especially so if an appellate court decision makes it so clear. (They felt Fish's due process rights were violated for pete's sake. That's usually tantamount to saying the outcome might very well have been different.)

Last edited by RDak; July 7, 2009 at 01:12 PM.
RDak is offline  
Old July 7, 2009, 01:25 PM   #73
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,904
Quote:
Originally Posted by RDak
Had those errors not risen to the level of casting doubt on the "no reasonable doubt" verdict,...
If you are going to spout off about the law, you should at least learn to use terminology correctly. "Reversible error" means that the errors could have affected the result. "Reasonable doubt" refers to the standard of proof in a criminal case and the level of certainty to which the jury must find the existence of the facts supporting a guilty verdict.

The appellate court was not sending secret signals about its view of the merits of the case. Appellate courts don't do that. Real life is full of cases sent back for re-trial to exactly the same result as the first time around. The function of the appellate court is to preserve the integrity of the process and not to telegraph veiled signals about the way the case should turn out.

So your analysis of the appellate decision is way off the mark. You are reading far too much into it.

And on balance, I tend to think that a re-trial should yield a different result for Fish. The fundamental question remains whether a reasonable and prudent person confronted with a larger and younger man running full tilt down hill towards him while shouting death threats would conclude that lethal force was necessary to prevent immediate death of grave bodily injury to himself. We'll see how things turn out.

But to suggest that the court of appeals concluded that such should be the result is overreaching.
Frank Ettin is offline  
Old July 7, 2009, 01:31 PM   #74
RDak
Senior Member
 
Join Date: October 17, 2004
Location: Michigan
Posts: 734
Well, we'll just have to agree to disagree on this one. (You're right though, reversible error could have resulted in reasonable doubt. )

Quote:
And on balance, I tend to think that a re-trial should yield a different result for Fish. The fundamental question remains whether a reasonable and prudent person confronted with a larger and younger man running full tilt down hill towards him while shouting death threats would conclude that lethal force was necessary to prevent immediate death of grave bodily injury to himself. We'll see how things turn out.
We agree on this though!!
RDak is offline  
Old July 7, 2009, 02:04 PM   #75
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 6,904
You're still wrong about the court of appeals. And yes, I'm a lawyer.
Frank Ettin is offline  
Closed Thread

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 08:41 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.16051 seconds with 7 queries