A county judge has ruled a new law that makes it easier for people to claim self defense will not be applied in the case of Harold Fish, accused of shooting Grant Kuenzli at a trailhead in Pine on May 11, 2004.
In response, the defense has requested Fish's trial be put on hold until the matter can be appealed to a higher court. The judge denied that request.
Coconino County Superior Court Judge Mark Moran ruled Tuesday that the new law, which changes the burden of proof from the defense to the prosecution, does not apply in Fish's case, currently in trial.
The defense argued the law applies to the Fish case because the change is a procedural one, which state law allows to be applied to cases filed before the law went into effect.
The prosecution argued that the law does not apply because the change is a substantive one, and therefore, because Fish was charged under the old law, the old law still applies.
A substantive change is defined as, "That portion of the law which creates, defines and regulates rights," according to court documents.
"The court finds that the statutory change is substantive in nature," Moran wrote in his ruling, citing case law. Moran added that the new law also does not contain a special provision making the law apply to cases filed before the law went into effect.
Fish, 59, is accused of second-degree murder in connection with the shooting death of Kuenzli. Fish has pleaded not guilty to the charge, claiming he shot Kuenzli in self-defense.
Fish maintains that two dogs in Kuenzli's care rushed at him as he exited the trail. To protect himself, Fish said he pulled a 10 mm handgun and fired a warning shot to keep the dogs away. He also maintains that Kuenzli then rushed at him threatening harm or death.
After several warnings for Kuenzli to stop, Fish shot Kuenzli three times in the chest at close range. Fish was not harmed, and Kuenzli did not have a weapon in his hands at the time he was killed.
County prosecutors filed murder charges against Fish, claiming that Fish went beyond the circumstances of the moment and needlessly killed an unarmed man when other options were available.
During the course of Fish's trial, the Arizona Legislature passed a new law regarding self defense.
Gov. Janet Napolitano signed the legislation in late April. The new law, in part, now requires prosecutors to prove, beyond a reasonable doubt, that a person did not kill another person in self-defense.
Before, defendants had the burden to prove it was more likely than not that they acted in self-defense.
According to court documents, one of Fish's attorneys, A. Melvin McDonald, spoke in front of the House Judiciary Committee in March about the benefits of the new law to criminal defendants like Fish.
Bruce Griffen, another of Fish's attorneys, said Thursday that the defense filed a motion in the wake of Moran's ruling requesting the trial be postponed until the defense can file a "special action," in essence an appeal, to a higher court by Friday or Monday.
The hope is, Griffen said, to receive immediate opportunity with the state appellate court to argue against Moran's ruling.
David Rozema, chief deputy Coconino County attorney, said the prosecution opposed the defense request for postponement.
"We are opposing any attempts to further delay this trial," Rozema said. "We want the case decided by this jury according to the law that was in place when this shooting occurred."
Moran denied the postponement, and the trial continued Thursday with more witnesses for the prosecution's case.
If the appellate court judges agree to hear the defense appeal, they have the right to order the trial postponed, Griffen said.
The trial is scheduled to resume today, Tuesday.