The crux of this case is that Hal Fish carried a .40 cal semi-auto and unfortunately loaded with FMJ. The proscecutor said this was hunting ammo and not a defensive weapon or load. Only use Personal Defense Ammo or you may end up like this...
04:36 PM MST on Tuesday, June 30, 2009
By JONATHAN J. COOPER / Associated Press Writer
PHOENIX (AP) -- A state appeals court on Tuesday ordered a new trial for a 62-year-old retired teacher convicted of murder in the shooting death of a hiker in northern Arizona five years ago.
Harold Fish claimed he shot Grant Kuenzli in self-defense during their encounter in the Coconino National Forest, but a jury convicted him and sentenced him to 10 years in prison.
The case galvanized gun-rights supporters, who said Fish's conviction represented a threat to their right to protect themselves, and prompted the Arizona Legislature to change the law to shift the burden of proof in self-defense claim cases from the defendant to the prosecutor.
Fish's attorney, Lee Phillips, said he's stunned and excited by the court's ruling. "We're thrilled that after over three years of being in prison, hopefully, Hal will get his justice and he'll be coming home before too much longer."
In May 2004, Fish was hiking when two dogs belonging to Kuenzli began running down a hill and threatening him. Fish told police he fired a warning shot at the animals. Kuenzli then became enraged and threatened Fish, who warned he would shoot. He then fired three rounds and killed Kuenzli.
In a 3-0 ruling, the appeals court said the trial judge's jury instructions inadequately described the law of self-defense. The trial judge also may have erred in barring evidence of the victim's prior acts of violence related to dogs, the appeals court ruled.
Testimony about Kuenzli's alleged history of similar threatening behavior could have corroborated Fish's account, appeals judges ruled. Prosecutors had argued that Kuenzli was not threatening Fish but was merely trying to restrain his dogs.
State law at the time of the killing placed the burden on the defendant to prove he acted in self-defense. The Legislature changed the law in the middle of Fish's trial to require prosecutors to prove a defendant did not act in self-defense.
The Arizona Supreme Court has said that the new self-defense law does not apply retroactively to Fish's case.
A spokeswoman for Attorney General Terry Goddard's office said lawyers were evaluating the opinion and will decide on an appeal to the Supreme Court.
Lawmakers are considering a bill that would give Fish a new trial under the new self-defense standards. The bill's sponsor, Glendale Republican Sen. Linda Gray, praised Tuesday's decision but said she wouldn't withdraw her bill because the case could still be appealed to the Supreme Court.
Gray's bill passed the Senate 19-10 and received preliminary approval in the House. It still faces a formal House vote before going to Gov. Jan Brewer.
"This was an injustice to the Fish family," Gray said. "The man was protecting himself."
© 2009 The Associated Press.