Harold Fish will spend the next 10 years of his life in prison unless the Arizona Supreme Court decides a new state law more sympathetic to self-defense applies to his case.
Fish, a 59-year-old retired schoolteacher and father of seven, received the mitigated minimum sentence for second-degree murder yesterday in Coconino County Superior Court in Flagstaff.
For Fish to receive a new trial, the Supreme Court must rule that a new
law signed last April by Gov. Janet Napolitano should be retroactive to May 2004 when Fish shot 43-year-old Grant Kuenzli to death at a trailhead north of Strawberry.
Coconino County Superior Court Judge Mark Moran ruled before Fish's trial began that the new law did not apply to the fatal shooting of Grant Kuenzli.
The Supreme Court will decide Sept. 26 if the new state law, which shifts the burden to the state to prove the use of deadly force in self-defense isn't justified, applies to the Kuenzli shooting.
Fish was convicted of second-degree murder in June.
In sentencing Fish, Moran gave him the minimum sentence allowed by law but denied a motion, known as a 603 L, that would have allowed Fish's attorneys to appeal his case to the Arizona State Board of Executive Clemency.
Moran said that in order to allow the appeal to the board of clemency he would need to rule that the length of the sentence was "clearly excessive" and he could not do that.
In handing out the minimum sentence -- state law mandates 10 to 22 years for second-degree murder-- Moran ruled there were several mitigating factors in the case including the fact that Fish was under substantial duress and feared for his own safety.
"I believed you reacted out of fear," Moran said.
The judge also noted that Fish had no criminal history, had been a successful public schoolteacher for 28 years, cooperated with authorities and had strong family, church and community ties.
He called the case one "that gives new meaning to the word ‘tragedy' for both families."
The sentencing of Fish, in front of a courtroom of his friends, family and Kuenzli's sister, Linda Almeter, allowed the former Tolleson High School teacher the opportunity to vividly and emotionally tell for the first time in public what happened on the trailhead the day he shot Kuenzli three times in the chest.
Fish did not take the stand during his trial.
Dressed in prison garb, handcuffed in leg shackles and looking gaunt from his days in jail, Fish -- during a 30-minute speech -- vigorously defended himself.
"I don't think the trial was fair," he said. "I feel that I am innocent and I should not have been convicted.
"If the jury had been given all of the facts, they would not have convicted me."
Fish was speaking of a ruling Moran had made early in the trial that Kuenzli's mental health records, statements from dozens of people describing troubling encounters with him and testimony from a former girlfriend -- who alleged Kuenzli terrorized her -- were not admissible.
Fish also said the guilty verdict was a "terrible miscarriage of justice."
"I told the truth (to investigators)," he said. "My word is precious to me."
Fish claimed the shooting was in self-defense and "there was no doubt in my mind (Kuenzli) was going to kill me."
The shooting took place moments after two dogs under Kuenzli's care charged Fish after he was wrapping up a late-afternoon hike.
Fish said he yelled for the dogs to stop, yelled for Kuenzli to control his dogs, but Kuenzli continued to run towards him yelling obscenities and threats.
"I never took a step toward him, I stepped back until I knew I could not retreat any further," Fish said. "(Kuenzli) never stopped or slowed. His arms were flailing."
There were no witnesses to the shooting which has drawn national attention partly because the National Rifle Association has contributed to Fish's defense fund.
After the trial, jurors said they didn't believe Fish's claim of self-defense, mostly because testimony from a medical examiner indicated Kuenzli's wounds were probably defensive.
He testified that Kuenzli's side was turned toward Fish when the first shot struck him.
NBC's "Dateline" has also followed the case for a future episode which examines the issues of safety in the national forests, dogs running free and the appropriate use of firearms.
-- To reach Max Foster call 474-5251 ext. 114 or e-mail email@example.com.
See related story:
New trial sought for Harold Fish (Aug. 1)