This is a discussion on good shooting gone bad within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Originally Posted by Jungle Work I believe the major problem this Victim had was he got a sorry attorney to defend him. I had a ...
A good example on the ineffectivness of pepper spray at stopping those hellbent on harming you for those folks who keep talking about pepper spray. I personnally don't see a use for a less than lethal weapon when my perception is that some one intends to kill me. If I am truely in fear of death or great bodily harm I'm going to want to shoot 'em with something that I am reasonably certain that is going to stop them when seconds count and I don't get any do overs, that is going to be a 45 not a can of pepper spray. If not in fear of your life you should probably be making tracks out of there instead of escalating a non lethal encounter by hosing people of questionable character down with pepper spray.
Last edited by HoggLegg; October 10th, 2006 at 06:55 PM.
If you stand up and be counted, from time to time you may get yourself knocked down. But remember this: A man flattened by an opponent can get up again. A man flattened by conformity stays down for good. ~ Thomas J. Watson, Jr.
The idiocy and ignorance of some of the juror comments is depressing. How could you sleep at night passing judgement on another man when you don't have a real clue about the situation? Karma comes around eventually. At least I hope so.
Well, apparently Mr. Fish was not judged by a jury of " his peers ". I strongly doubt he would 've been convicted had several of us been on the jury.
It seems obvious most, if not all of the people on the jury were totally ignorant about firearms and believed whatever garbage was fed to them, which is just what the DA wanted, I'm SURE. Mr. Fish had a 10mm pistol with hollow points, so he must have been hell bent for murder that day. Nothing but @#$&%# hogwash.
VERY scary to let a jury decide your fate. Having served on several juries, I'm amazed at what some of my fellow jurors come up with when we were trying reach a verdict. I was wondering, were these people even in the same court room with me ?? Crazy theories, most times unrelated to the evidence and made by wild conjecture, not facts. Logic, common sense, basic intelligence were sorely lacking in the jury pool.
Mr. Fish got screwed for sure.
Wow that was a shocker! As a prosecutor myself, as I was reading the article, I thought for sure that the defendant would be found not guilty. Well it does go to the point already made and I can re-emphasize it, keep your mouth shut. Its amazing how many people don't exercise their rights when things happen and it can be and often is damaging when they attempt to exercise their other rights later on.
I often use defendant's statements against them. In fact in what is otherwise a weak case can instantly become strong with an admission or confession. So as others have said, keep your mouth shut because DA's will use it against you. In fact I have had to tell defendants representing themselves to not talk about the facts of their case because they might accidentally say something and I warn them that I will use it against them.
This is one of those that I certainly hope gets overturned on appeal based on insufficient evidence as well as possibly inadequate assistance of counsel. There was a question about whether or not the 10 years was the minimum. I don't know AZ law but in CA, there are certain crimes that statutorily, even if the judge wanted to give it to you, do not qualify for probation or something like that. The defense really should have run a motion for a new trial or something like that if available because it sounds like the judge might have granted it. Other valid points, especially about the ammo and the weapon used were the same kinds of things that LEO uses should have been brought out (kind of why I went with a .40; same as most LEO).
Well lessons learned. Someone mentioned that there were good points on all sides. I think that given the opportunity to run and leave is present, we should all take it even if we would be justified in shooting. Some things are just not worth it.
I've been struggling to find some sense in this case for a while. From a CCW standpoint, we all see right through the BS about the hollowpoints and the 10mm. From a legal standpoint, the verdict holds no water. All the jury needed to find was that based on the preponderance of the evidence (not beyond a reasonable doubt) that a reasonable person would have felt he was in danger of serious harm or death. How does the fact that Fish did not apply pressure to the wounds have anything to do with whether he felt threatened by Kuenzli? For that matter, what does the warning shot to the dogs have to do with that? I am WAY less concerned about two dogs coming at me than an enraged human. Fish needed to be judged based on the split-second decisions he made based on an obvious fear of serious bodily harm, not whether he could have done things better. Unfortunately, rather than follow the law these are the sort of irrelevant issues juries get sidetracked on.
I too fault his legal team for not properly educating the jury but stop short of anything beyond that. Fish has a very well-respected lawyer who previously served as a state court trial judge and has a long pedigree. His expert witness is another well-versed lawyer who literally helped write Arizona's gun laws, helped develop Arizona's CCW class, and is a CCW instructor. This was a mini-Dream Team and Fish's legal bill shows it as, according to his website, it is now close to half a million dollars.
At minimum, he will serve several months in prison as his appeals play out and will face the inevitable civil suit afterward. Let's all hope this gets overturned and he gets a new trial. I read somewhere that the jurors would have voted to acquit if Arizona's new law was in place at the time of the trial. I believe a new trial will get him the benefit of that law.
The only way I can reconcile this decision with my training is that the jury was sending a message that those who carry must have a non-lethal option available. As far as I know, Fish had his fists and a 10mm to deal with a SHTF scenario. As unfair as it is, I believe the jury judged him for not having a way to deal with an intermediate threat. Fish was, if I may, caught in a trap. He had the opportunity to stop a threat with less than lethal force but no way to effectively execute that force. The jury may have imposed its own uninformed thoughts on what that intermediate force should have been, such as shooting Kuenzli in the shoulder or the leg, firing a warning shot, or hitting him with the butt of the gun. It's easy to justify those as "better" actions after the fact. The truth is, if a cop with a Taser on his hip shot a man to death who was charging from far away with no apparent weapons in his hand, there would be a pretty good case for excessive force. Fish did not have a Taser, baton, or OC, but was treated as if he should have. But even if that's true, that's negligent behavior, not murder.
I've actually had to use spray, (CS, not pepper) in a defensive situation, and I consider it to be a very chancy weapon. In my own case, it blew back in my own face. I got it worse than my attackers. (about 12)
I think it could also be a debating point by a prosecutor, that since I used pepper spray first, rather than shooting an "alleged" attacker, that I was never really in legitimate fear for my life.
The outcome of this trial reminds me that I need to confer with an attorney to be more familiar with the legal aspects, all around.
Whatever happened to the standard of beyond a reasonable doubt in criminal trials? From the facts in the article, it seems to me there would be more than sufficient grounds for having reasonable doubt that Fish committed "murder" in this incident. Sure, it could be that Fish shot accidently and it could be that he overreacted. But the standard of justice is not "could have been" - it's "beyond a reasonable doubt".
I wonder if all the jurors, if asked, would have agreed that it was beyond any reasonable doubt that Mr. Fish committed murder that day? That is the standard jurors are supposed to adhere to - not the standard of "maybe he/she did it" because there's this little time discrepency, or because he had these particular bullets in his gun.
Madmax, Fish had to admit to second-degree murder in order to raise the self-defense argument. Under Arizona law at the time, Fish then had to prove by the preponderance of the evidence that the shooting was justified, essentially making him guilty until proven innocent. This meant that in any self-defense shooting a defendant had to admit guilt to the highest crime the prosecutor decided to hit you with, in this case second-degree murder, rather than face a trial on lesser charges the prosecutor might be able to prove like assault, manslaughter, or negligent homicide. Thankfully the people of this state wisened up and that law is no longer on the books here.
If you ever needed proof of the wisdom of the STFU theory of talking to the police after a shooting, this case is it.
A jury is nothing more or less than a panel of people who were unable to get themselves excused from jury duty. Some juries can be led down the path to making the right decision. Some juries have watched too much television, and can't come to the right decision even when charged by a judge with a directed verdict.
Know what you will say to the police if you are ever involved in a shooting. Stick to that pre-planned response.
Consult an attorney.
And keep your mouth SHUT until you have consulted with counsel.
It is surprisingly easy to talk yourself into a prison cell.
Battle Plan (n) - a list of things that aren't going to happen if you are attacked.
Blame it on Sixto - now that is a viable plan.
Yeah, that is a bad one. I think that I have read about it before and I believe this is the one that failed the appeal too :(
One comment: couple people mentioned that after reading this account if they are presented with a similar situation they might pickup their brass and walk away. Don't do that! If someone spots you they might not identify themselves out of fear but they might follow you. Take your description down, take the plate number of the vehicle you'll drive off in, or call the cops and have them waiting for you. If you thought you'd look guilty if you called cops yourself in such a situation, think about how you'll look if someone will call them for you while you're quietly trying to walk away.
I am taking a CCW class right now and the instructor had couple important points:
Even if the cop tells you that it looks like a clean shoot and it looks like you'll get off if you just tell him couple details STFU. For one, the cop is not a DA nor a judge. Also even if you get of on the criminal your statements can be used in a civil lawsuit, so STFU.
In this specific case there were no other witneses as he was in the middle of nowhere.
Had this been in a back alley somewhere or some such Collateral style then yeah the possibility is there for concealed out of sight quiet observers.
Agreed regarding STFU.
Definitely a lesson learned here is STFU people...cops are not your friends, priest, legal advisor and cannot provide absolution.