The defense attorney for Harold Fish has filed a motion claiming prosecutors tilted testimony heard by a grand jury to gain an indictment against the 57-year-old retired school teacher.
In the defense motion, filed in Flagstaff, Fish's attorney Melvin McDonald asked Coconino County Judge Mark Moran to overturn the July 22 indictment charging prosecutors were not impartial and failed to provide the grand jury with information that would have been favorable to Fish.
The former Tolleson High School teacher is accused of shooting and killing Grant Kuenzli, 43, during a May 11 confrontation near the Pine Creek Trailhead.
In McDonald's 116-page motion, he claimed that prosecutors failed to uphold their legal responsibilities of being "ministers of justice who assist the jurors in their inquiry."
McDonald also claims that prosecutors -- by omitting information about the shooting -- violated a supreme court decision that requires prosecutors not to influence the jury.
Prosecutor omissions, McDonald said, included grand jury testimony from a witness who claimed Kuenzli was unarmed when Fish shot him.
Photos of Kuenzli at the death scene, however, show a 7.5 inch screwdriver in his back pocket, McDonald said.
Lead prosecutor Michael Lessler of the Coconino County Attorney's Office said he could not respond because the case should be litigated in court.
By filing the motion, McDonald hoped that the court will assign the case to another grand jury and toss out the second-degree murder charges against Fish.
McDonald also speculated that a second grand jury would not issue an indictment because the prosecution hadn't proven its case beyond a reasonable doubt.
"They needed eight votes and they barely made it," McDonald said. "It was razor thin, maybe 10-5 and could have been 10-6."
County prosecutors have until Jan. 14 to respond to the motion. Oral arguments are scheduled Jan. 25 in Coconino County Superior Court.
If the case goes to trial, McDonald will argue that Fish acted in self-defense when he shot Kuenzli.
At the onset of the investigation, Fish told investigators he fired two warning shots at Kuenzli's three dogs before shooting Kuenzli three times.
Fish also said Kuenzli charged him, screaming a death threat, and feared for his life.
Others have portrayed Kuenzli as a non-violent and friendly person.
"He was a kind, gentle soul and a good man; he liked reading poetry and was interested in history," said Teresa Emig who worked with Kuenzli near the Grand Canyon for four years.
McDonald's request for a new grand jury is not the first motion he's filed in Fish's defense.
Last fall, he summoned the court to release Kuenzli's mental health records; prosecutor Lessler opposed the motion.
Lessler contended that the defense is using smear tactics to ruin the victim's reputation, and added that Kuenzli's records should not be made public to preserve doctor-patient confidentiality.
McDonald said he doesn't know specific information in the records, but said that they could contain details favorable to Fish's defense by showing a history of unstable behavior.
In October 2002, Kuenzli was arrested by Mesa police for stalking a woman who filed two restraining orders against him.
Reports obtained by the Roundup detailed the woman's accusations. She described him as threatening, abusive and unable to come to terms with their breakup. The woman also reported that he sexually assaulted her. No charges were filed, and Kuenzli has no criminal record in Arizona.
McDonald will argue for the release of Kuenzli's medical records and for the instatement of a new grand jury Jan. 25 in Flagstaff.