In reversal, House OKs bill to make self-defense law retroactive

PHOENIX -- The House on Monday reversed itself and approved the latest attempt to make a 2006 self-defense law favorable to defendants apply retroactively in some cases.

The House approved the bill on a 32-23 vote, six days after rejecting the bill 31-27.

Four Republicans and one Democrat who voted against the bill on April 17 cast votes for it on Monday. They were: Republican Reps. Bill Konopnicki of Safford, Jennifer Burns of Tucson, Lucy Mason of Prescott and Jim Weiers of Phoenix, as well as Democratic Rep. Barbara McGuire of Kearny.

The bill would make the 2006 law apply to cases pending in trial court when the law took effect on April 24, 2006.

That time limit and a requirement that defendants had not pleaded guilty or no-contest would have limited the law's reach to about a dozen cases, supporters said.

Gov. Janet Napolitano vetoed a broader retroactivity bill earlier this year, agreeing with prosecutors who argued it would have applied to numerous cases.

The 2006 law made it easier for defendants to claim self-defense, and many supporters expected it would help Harold Arthur Fish, a hiker convicted in a trailside shooting in Coconino County.

Fish wasn't mentioned by name during either House floor debate, but Republican Rep. Russell Pearce of Mesa on April 17 said the bill would have provided an appropriate right to claim self defense to "good people defending their lives."

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense.

With the change, prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

Fish supporters hoped the 2006 law would be included in instructions given to jurors in his trial on charges he fatally shot Grant Kuenzli during a 2004 confrontation on a trail near Payson. Fish had claimed self-defense, saying that Kuenzli charged him in a threatening manner after Fish shot at a dog that he considered a threat.

A Coconino County Superior Court judge denied a request by Fish to apply the new self-defense law retroactively to his case, and the Arizona Supreme Court on Feb. 9 ruled in another defendant's case that the 2006 law didn't apply retroactively.

This is part of the continuing saga of Harold Fish, who almost certainly acted in self-defense when he shot a mentally unbalanced homeless person who attacked him on a hiking trail in Arizona.

Someone (the particulars are quite hazy) had changed the law on self defense in Arizona in 1995 to reverse the burden of proof from what it had been since Arizona was a territory, and as it is in 48 other states. No one noticed the change for years, even people who studied this particular law. I know, because I was one of them.

In essence, because of the weird change in the law in 1995, Harold Fish had to prove his innocence. An extremely hostile prosecutor made this virtually impossible.

The legislature has now changed the law three times to try to rectify the injustice. The first time, the judge and prosecutor said it did not apply to the Fish case, even though the legislature passed it before the trial and in such a way as to make it immediately effective. The second time, the legislature said, effectively, "We mean it!" and Governor Janet Napolitano vetoed it. This is the third time, and we will see what Janet does.

My question is: What does she have against Harold Fish?

Is it just that he had the gall to defend himself? Or does she owe the prosecutor in this case something? After all, she was a Clinton appointed prosecutor herself.

They passed it as an emergency measure, to make it go into effect immediately. This was before the trial of Harold Fish, so it wasn’t really retroactive.

Yes, I think that they have the power. It does not take anything from defendants, only restores the law to what it was pre- 1995.

>>They passed it as an emergency measure, to make it go into effect immediately. This was before the trial of Harold Fish, so it wasn’t really retroactive.<<

This makes sense.

Yes, I think that they have the power. It does not take anything from defendants, only restores the law to what it was pre- 1995.<<

What concerns me is that if they can change criminal law retroactively it could be misused could the next congress and President make something President Bush did retroactively criminal?

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