Court: New self-defense laws not retroactive - East Valley Tribune: East Valley Local News

Court: New self-defense laws not retroactive

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Posted: Monday, January 4, 2010 5:38 pm | Updated: 3:32 am, Sat Oct 8, 2011.

A bid by state legislators to retroactively change self-defense laws is unconstitutional, the Arizona Court of Appeals ruled.

Without dissent, the judges said Cesar Montes, convicted of the 2005 shooting death of Benjamin Cota in Pima County and the wounding of two others, is not entitled to take advantage of changes in self-defense laws enacted after the shootings.

But unless overturned, the new ruling also could affect other cases in which people convicted of murder have been trying to use the new law — the one the appellate court just voided — to get a new trial.

David Euchner, a deputy Pima County public defender, said he intends to appeal the case to the Arizona Supreme Court. He said the appellate judges were wrong in concluding that the Legislature is powerless to rewrite a law giving more rights to criminal defendants to make it retroactive.

Central to the issue is Arizona’s self-defense law.

Before April 2006, the legal burden was always on the defendant to prove that he or she had no choice but to use force.

That year, spurred by lobbying on behalf of Harold Fish, accused of the shooting of a hiker in Coconino County, legislators agreed to revamp the statute. It now says that once a defendant claims self defense, the burden is on prosecutors to prove otherwise.

But lawmakers also specifically crafted the change to apply to any cases that had not yet gone to a jury, a move backers admitted was designed to help Fish. The Arizona Supreme Court subsequently ruled, however, that the law was not crafted to be retroactive, leading to Fish’s conviction.

That Supreme Court decision also meant that Montes, whose trial had not yet occurred, had the burden of proving his claim that he acted in self defense. A jury did not believe him; he was sentenced to 23.5 years in prison for that crime and assaults on two others.

Last year, Sen. Linda Gray, R-Glendale, who has taken the lead on this issue, pushed through another version of the bill.

This one specifically was written to make the change in self-defense law retroactive to any cases that were pending on the effective date of that 2006 law.

That includes Montes. He then sought a new trial under the changed law — one at which prosecutors would have to disprove his claim of self defense.

Judge Joseph Howard, writing for the appellate court, said Gray’s legislation was meant to try to get around the earlier state Supreme Court ruling.

“A legislative attempt to retroactively overrule a decision by the courts of this state interpreting a statute violates the separation of powers doctrine,” Howard wrote, quoting from earlier court rulings. And he wrote that earlier Supreme Court ruling clearly stated the change in self-defense laws affected only offenses committed after April 2006.

“Once the Supreme Court interpreted (the earlier law), this interpretation became part of the statute,” Howard continued. “The legislature’s subsequent attempt to overrule our Supreme Court decision … was therefore unconstitutional.”

Euchner, however, said that conclusion ignores the fact that the Supreme Court, in its first ruling, said the Legislature was entitled to make the change in self-defense laws retroactive.

What the high court ruled, Euchner said, was that lawmakers just didn’t craft the 2006 law carefully enough to make that clear.

“If they’re allowed to go back and change the law retroactively once, why are they not allowed to do it twice?’’ he asked.

Less clear is the impact of the new ruling on the case of Fish, who was convicted of the 2004 murder of Grant Kuenzli on a trail in rural Coconino County. Fish’s conviction was overturned by the Court of Appeals on other grounds, with that court saying he was entitled to a new trial.

The Coconino County Attorney’s Office said it doesn’t plan to retry Fish. That statement, however, was made before this new decision on the validity of the change in law.

Calls to the office seeking comment were not immediately returned.

According to court testimony in Montes’ case, Cota and his twin brother, Joseph, along with two friends, were walking back to their car after being turned away from a party. They exchanged words with Montes, who was sitting inside a car.

Prosecutors said Montes then opened fire on the men, none of whom was armed. Benjamin Cota, 19, suffered a fatal gunshot wound to the abdomen. Joseph Cota was shot in the chest and Thomas Goffrier was shot in the buttocks.

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