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Bill would grant new trial to murder defendant
The state Senate voted Monday to effectively overturn a murder conviction and give the defendant a new trial.
SB 1449 would spell out that a 2006 amendment to self-defense laws was meant to apply to cases which had not yet come to trial by that point. It says anyone who was awaiting trial when the law took effect on April 24, 2006 and did not subsequently plead guilty is entitled to the benefits of that change.
Prior to that date, state law put the burden on a defendant in a criminal case to prove any claim of self defense. The new law instead puts the burden on prosecutors to prove a defendant did not act in self defense.
Most immediately, the legislation would nullify a jury's guilty verdict in the case of Harold Fish, a retired Tolleson schoolteacher convicted of the 2004 murder of a hiker in Coconino County.
Fish's trial was conducted after the change in the law. But the trial judge ruled Fish could not avail himself of the new law.
And the jury, told that Fish had the burden to prove he was acting in self defense, did not believe him and convicted him.
That conviction remains on appeal.
Sen. Linda Gray, R-Glendale, said SB 1449 is designed to spell out that, despite what the trial judge ruled, Fish's trial should have been conducted under the revised law. She wants Fish to have a new trial, this one under the rules which put the burden of proof on prosecutors to prove that Fish was not justified in the shooting.
Fish told investigators that two dogs belonging to victim Grant Kuenzli rushed him at a trailhead. Fish said he fired a warning shot at them and, when Kuenzli charged him, Fish shot him three times in the chest.
There were no witnesses to the shooting. But both the medical examiner who performed an autopsy on Kuenzli and firearms experts testified the victim's wounds likely were defensive.
Lawmakers approved versions of this measure twice before, only to have both vetoed by then-Gov. Janet Napolitano. She said she feared that even a narrowly-crafted measure like this could result in overturning other convictions, forcing new trials in those cases, too.
This bill now goes to the House and, if approved there, to Gov. Jan Brewer.
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