Coconino County Attorney David Rozema will not retry retired school teacher Harold Fish for killing a dog-walking Payson man during a trailside confrontation five years ago due to a change in the law concerning self-defense.
Fish could get out of prison as early as July 22, although the attorney general’s office might also appeal the Appellate Court’s decision to the state Supreme Court.
Rozema announced his decision not to conduct a second trial yesterday, Thursday, saying the prosecution would have a harder time disproving Fish’s claim of
self-defense now that Gov. Jan Brewer has signed SB 1419, which shifts the burden of proof from a defendant to prove self-defense, to the prosecution to prove the act was not self-defense.
The bill, which Brewer signed July 13, also makes the new law retroactive to May 11, 2004, the day Fish killed Grant Kuenzli during a trailside confrontation north of Strawberry. Fish argued he acted in self-defense after Kuenzli and the Payson Humane Society dogs he was walking attacked him. Fish was convicted and imprisoned in June 2006.
Twice since Fish’s conviction for second-degree murder, the Arizona Legislature passed self-defense bills that were retroactive to Fish’s case, but former Gov. Janet Napolitano vetoed both.
Rozema said the retroactive law affected his decision not to retry Fish.
“In a case like this one, where there is limited physical evidence and no eyewitnesses other than the defendant himself, a second prosecution under the new law is not appropriate,” he said.
“For these reasons and due to the enormous strain that these types of cases place on the limited resources of our office, we have decided in the interest of justice that we will not conduct a second trial in this case.”
Fish’s wife Debbie, called the county attorney’s decision not to retry “wonderfully good news,” but is not sure if her husband, who is being held in a Valley prison, knew the prosecutor had decided against a retrial.
“Not unless he might have seen it on television news,” she said.
Debbie is also not certain when her husband will be released from prison, but is hopeful it will occur July 22 during a hearing in front of trial judge Mark Moran at Coconino County Superior Court.
Lee Phillips, Fish’s Appeals Court lawyer, and Rozema will take part in the hearing.
Rozema has indicated he will cooperate with the effort to have Fish released.
Although the Appellate Court has thrown out Fish’s second-degree murder conviction, the attorney general could appeal that reversal to the state Supreme Court. That could delay Fish’s release for months.
The attorney general’s office did not immediately respond to requests for information concerning a possible appeal to the Supreme Court.