On May 11, 2004, 57-year-old Harold Fish, a retired high school teacher, was completing a solo hike in a remote area of the Coconino National Forest near Strawberry, Arizona, when he saw 43-year-old Grant Kuenzli lying on the ground near a car. Fish waved at Kuenzli, whom he did not know, and two unleashed dogs came charging at him.
Fish yelled at Kuenzli to corral the dogs and, when nothing happened, he pulled a 10-millimeter semi-automatic pistol from his backpack and fired a warning shot into the ground. The dogs scattered, but then, according to Fish, Kuenzli himself charged at Fish, threatening to kill him.
Fish fired three shots and killed Kuenzli, a former firefighter who was living out of his car in the forest. Fish covered Kuenzli’s body with a tarp and walked to a highway where he flagged down a motorist who summoned emergency personnel.
In the days after the shooting, a Coconino County deputy sheriff stated publicly that the shooting was a case of self-defense, sparking a public debate between citizens who believed the shooting was unwarranted and the National Rifle Association, which supported Fish. The deputy was removed from the case and on June 4, 2004, Fish was arrested and charged with second-degree murder.
By the time Fish, who had no criminal record, went on trial in Coconino County Superior Court in the summer of 2006, the case had become the focal point of a public debate over what constitutes self-defense, the dangers of unleashed dogs and hiker safety on public land.
At trial, the prosecution presented testimony from a forensic expert that the angle of entry of the bullets into Kuenzli’s body showed the wounds were defensive. One of the bullets pierced Kuenzli’s hand and arm before striking his chest, the expert said, indicating he had a hand raised in self-defense, and, therefore, that Fish was not acting in self-defense. Fish’s attorneys had sought to bar the testimony as speculative, but the judge permitted the testimony. On the other hand, the judge barred the defense from presenting the testimony of a defense investigator who had examined the crime scene and the path taken by Kuenzli and would have testified that the evidence showed Kuenzli was aggressively moving toward Fish.
Fish did not testify, but his wife and daughter, as well as several witnesses testified to the dogs’ propensity for aggression and violence. The jury also heard a portion of Fish’s grand jury testimony in which he said that he felt in fear of his life when Kuenzli charged him. The incident lasted no more than 10 seconds, according to the testimony.
Fish’s defense attorneys tried to present evidence of Kuenzli’s violent behavior on other occasions when he thought his dogs were attacked, but the judge refused to allow the jury to hear that evidence.
On June 14, 2006, Fish was convicted of second-degree murder and sentenced to the minimum term, 10 years in prison.
Later that same year, the Arizona legislature enacted a law that expands the rights of citizens to use lethal force when attacked and requires the prosecution to prove beyond a reasonable doubt that a criminal defendant was not acting in self-defense in order to get a conviction. Before that the defendant had to prove that he was acting in self-defense.
In July 2009, the Arizona Court of Appeals reversed Fish’s conviction because the trial judge failed to give necessary jury instructions, and because the judge improperly excluded evidence of Kuenzli’s past acts of violence which Fish attempted to present to support his claim that Kuenzli was the aggressor.
The appellate court noted that the evidence about Kuenzli’s background was “highly sanitized,” and that if permitted, numerous witnesses would have described Kuenzli as “irrationally aggressive and violent and extremely frightening.”
Fish was released from prison on bond on July 21, 2009. On December 1, 2009, the Arizona Supreme Court rejected the prosecution’s request to review the case. The Coconino County District Attorney’s office then dismissed the case.
– Maurice Possley
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