Revised bill would retroactively alter self-defense laws

Capitol Media Services ^ | 06.25.2007 | Howard Fischer

[riverrunner]

PHOENIX — State lawmakers are making a last-ditch effort to retroactively change self-defense laws to help overturn the murder conviction of one man and help another escape being found guilty.

A bill sent to Gov. Janet Napolitano in the last hours of the legislative session would spell out that a law altering the self-defense statutes that took effect in April 2006 applies to any cases that had not yet gone to the jury on that date.

Napolitano vetoed a similar measure earlier this year, saying she feared the change would upset far too many cases. So Sen. Linda Gray, R-Glendale, redrafted the legislation to narrow its scope a bit.

But Rick Unklesbay, chief criminal deputy attorney for Pima County, said this latest version is still ill advised and said Napolitano should veto it, too. The governor said she is reviewing this measure — and several others sent to her when the Legislature adjourned late Wednesday — and will decide this coming week.

Most immediately, an altered law would grant a new trial to Harold Fish. The teacher was convicted of the 2004 murder of hiker Grant Kuenzli on a trail in rural Coconino County.

Fish said he fired after Kuenzli's dogs — and then Kuenzli — attacked him.

It also would make it easier for David Rene Garcia to plead self-defense in his upcoming trial in Pima County. Garcia is accused of shooting shooting a man he said attacked him in his own home in 2004; he says he was defending himself.

Central to the issue is that the law in effect prior to April 2006 required people claiming self- defense to prove to a court they were in fear for the lives to be acquitted. The new law says once someone claims self-defense, it is up to prosecutors to prove otherwise. Efforts by both men to demand a trial under the new standard failed. The state Supreme Court ruled that the 2006 law was worded in a way to apply only to crimes committed after its effective date.

Gray said that wasn't the intent of lawmakers. She is seeking to now say the 2006 law should apply to cases pending on that date.

In vetoing the first measure, Napolitano said it would reopen an untold number of cases where defendants already have pleaded guilty, not just to murder charges but to lesser crimes such as assault. And the governor said that would be a burden on the courts and force victims and their families to go through yet another trial.

In an effort to placate Napolitano, Gray redrafted the bill: It now would apply only to those whose cases had not yet gone to a jury on that date. That language would specifically bar those who have since entered into plea deals from now seeking to void those deals and instead take their chances of going to trial and claiming self-defense.

"It's better," said Unklesbay. "But it's still bad," he continued. "There's no reason why the Legislature should change the law retroactively." And Unklesbay is skeptical of Gray's claim it would affect just a few cases.

Unklesbay said he still is compiling a list of just those in his own jurisdiction who, if Napolitano signs the legislation, now might demand a new trial. One of those is the case of Robert Carlos Garcia who, 15 at the time, was convicted earlier this year of the 2005 killing of Jimmy Lee Rose, 18.

Unklesbay told jurors at the time that Garcia shot Rose 10 times during an argument over how Garcia was treating a teenage girl. But defense attorney Robert Parrish argued that Garcia felt threatened by the larger and older teen and acted in self-defense.

Garcia was sentenced to 13 years in prison.

[riverrunner]

This is part of the continuing saga of Harold Fish, who almost certainly acted in self-defense when he shot a mentally unbalanced homeless person who attacked him on a hiking trail in Arizona. Prosecutors had lobbied to change the law on self defense in Arizona in 1997 to reverse the burden of proof from what it had been since Arizona was a territory, and as it is in 48 other states. The change passed without debate, and almost no one noticed for years, even people who studied this particular law. I know, because I was one of them.

In essence, because of the weird change in the law in 1997, Harold Fish had to prove his innocence. An extremely hostile prosecutor made this virtually impossible.

The legislature has now changed the law three times to try to rectify the injustice. The first time, the judge and prosecutor said it did not apply to the Fish case, even though the legislature passed it before the trial and in such a way as to make it immediately effective. The second time, the legislature said, effectively, "We mean it!" and Governor Janet Napolitano vetoed it. This is the third time, and we will see what Janet does.

My question is: What does she have against Harold Fish?

Is it just that he had the gall to defend himself? Or does she owe the prosecutor in this case something? After all, she was a Clinton appointed prosecutor herself.

[an amused spectator]

This is the answer to all the "If you don't like it, just change the law" people out there on Free Republic.

Apparently, the legislature itself has a hard time "changing the law". If it wasn't for Fish's railroading, it would be entertaining.

[skepsel]

Well, we wouldn’t want to inconvenience this Unclesbay apparatchik with something like justice would we?

Just think, his numbers might go down and it could affect his career! Something has to be done about these people constantly whining about rights and justice.

[untrained skeptic]

Napolitano needs tossed out of office, and they need to elect someone with the integrity to pardon Fish.

[Still Thinking]

But doesn’t a pardon just remove his liability for punishment for the “crime”, and he would still have a felony conviction on his record? If so, it’s a start, like so he can be free and working while waiting for this to get fixed, but not nearly good enough. I smell a lawsuit where the honest taxpayers of Arizona will get hosed to compensate for errors made by our masters.

[marktwain]

This may explain why Dorothythompson came on and posted.