New Trial Sought For Harold Fish

With sentencing scheduled Thursday, defense claims jury misconduct

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The jury did not make a hasty decision when it convicted Harold Fish of second-degree murder despite accusations from the defense, said jury foreman Michael Nelson.

In fact, he said, the jury rigorously deliberated the evidence and testimony given at trial regarding the shooting death of Grant Kuenzli.

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Harold Fish

And the two days of deliberations came down to one crucial witness -- the medical examiner who examined Kuenzli's body, Nelson said. If Fish's claim of self-defense were true, why did Kuenzli's body have "defensive wounds" as the medical examiner testified?

Fish, a retired Valley schoolteacher and father of seven, was accused of the May 11, 2004, shooting death of Kuenzli at a trailhead near Pine. The two men met in the late afternoon. Fish claimed that Kuenzli and two dogs in his care rushed at him.

Although he fired a warning shot at the dogs, he shot Kuenzli three times in the chest at close range. Fish, unharmed in the incident, maintained he fired in self-defense.

The Fish trial ended in conviction in mid-June.

New trial sought

After Fish's conviction, the defense filed a motion seeking a new trial, citing Fish deserved a new trial, in part, because one of the jurors appeared to make a hasty decision of "guilty" in order to open a new business.

Nelson said the juror in question actually requested the jury think about their decision another day, which would have been the day her new store was to open.

When the jury was released to begin deliberating, Nelson said, the whole first day was spent talking about the jurors' perceptions and concerns regarding the case. No vote was taken that day.

Nelson said he felt that talking that first day was important, because none of the jurors had been allowed to talk about the case.

"We hadn't been able to talk about it for six weeks and some of us were just burning up," Nelson said. "Finally, we were able to pop that bubble and talk about it."

The second day of deliberations began with the jury going over the evidence and the testimony.

First vote split, 4-4

The first vote revealed the jury was split, four to four. Some of the jurors, because of the defense testimony, saw Grant Kuenzli as an aggressive, violent "monster" rushing at Fish that day.

"Then there were some of us who just didn't buy it," Nelson said, adding that Kuenzli was a dog lover, a volunteer for the animal shelter in Payson and had friends in the community.

Nelson said the jury decided to review what the medical examiner had to say on the subject. Fish's version was that Kuenzli was rushing at him and he feared for his life, which is why he shot Kuenzli three times in the chest, one of the bullets hitting Kuenzli's hand.

"(The medical examiner) said Mr. Kuenzli was (sideways) to Mr. Fish when the first shot occurred," Nelson said. "I thought that was pretty remarkable testimony."

The medical examiner explained that Kuenzli was not facing Fish at the time of the first shot, and actually had his hands out in front of him.

"So (Kuenzli) was like protecting himself, and they were defensive wounds," Nelson said. "They were not antagonistic. That's really what swayed the jury."

Additionally, the jury was troubled by several discrepancies in Fish's version of what happened that varied from separate investigator interviews and grand jury testimony.

"We came to distrust his testimony," Nelson said. "I wish he had gotten onto the stand to explain the discrepancies."

Had Fish testified, it might have had an impact, Nelson said.

And the fact that Fish didn't remember pulling the trigger suggested a reaction to circumstance, Nelson added. For Fish to claim self-defense, he needed to feel imminent danger of harm or death. Instead, he just reacted.

"If he had just waited another five seconds, if he could have stepped to the side, if he could have crouched down and taken the brunt on his shoulder -- I wish he would have waited another five seconds," Nelson said.

Second vote unanimous

Deliberations centered on Kuenzli's last seconds, Nelson said. He heard a shot, looked up and saw a man shooting the dogs he was walking.

"We figured he was running down to save his dog," Nelson said.

In the end, the jurors relied on their own experiences, Nelson said.

"We were supposed to think about what a reasonable man in the exact same situation as Mr. Fish would have done," Nelson said.

"And that's what we did."

The vote in the afternoon the second day revealed a unanimous decision for conviction, Nelson said.

But even after that vote, he and other jurors took another half-hour to review notes, go through evidence to ensure he and the other jurors had made up their minds.

"His actions weren't allowed under the law," Nelson said.

"I stand by our verdict. Mr. Fish is guilty."

Self-defense law

The self-defense law in the state changed during the course of Fish's trial and makes a claim of self-defense easier for defendants to prove.

The defense alleged that jurors spoke of this during deliberations, suggesting that jurors read media accounts and tainted their proceedings.

Nelson said the new law was never discussed during deliberations among the jurors.

Immediately after the trial, the jury was "slammed right out of the gate because of the original verdict," Nelson said of letters to the editor criticizing the jury.

Though he decided Fish was guilty, Nelson said he has reservations about Fish's punishment. Defendants convicted of second-degree murder face between 10 and 22 years in prison.

"I think he's guilty, but I don't know that he deserves 22 years in prison," Nelson said.

Fish is scheduled to be sentenced Thursday in Flagstaff unless Judge Mark Moran decides to hear the motions for a new trial.

See related story:

Sentencing in trail shooting a month away (June 20)

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