Pine Canyon Tragedy

[montezumawell]

We suspect that many readers are familiar with what we're calling "The Pine Canyon Tragedy."

In short: In May 2004, a hiker is allegedly beset by two dogs. He allegedly shoots toward them. The dogs' owner allegedly charges the hiker, allegedly yelling one or more death threats. The hiker allegedly shoots the individual. The individual dies. A Coconino County Grand Jury indicts the hiker. Various legal proceedings transpire since then.

Today's Arizona Republic (March 25) carries the latest news in this case. Sicne it is likely that this case will continue in the "public eye," so to speak, we figured we'd bring the topic back up to front and center here on HAZ.

Here is the link to the latest story:

(dead link removed)

You can also get some more of the background by Googling various permutations of "Pine Canyon trail shooting" etc.

It is, indeed, interesting that the Judge noted the discrepancy on the speed of the deceased. One report we read supposedly indicated he was doing 8 miles per hours. Hum...that's about the median speed of most people who regularly run in 10K races. That's pretty danged fast. We've also read that the deceased supposedly had the "uphill" advantage on the shooter--in other words, he was allegedly running downhill, supposedly yelling his alleged threats or whatever.

If you've hiked that trail, you know the steep part is somewhat "Grand Canyonesque" in its switchbacks through the sandstone. Even though news reports are vague as to the exact location of the shooting, we deduce it had to be the switchbacks because they are in Coconino County. Anything South of there would be in Gila County as the county line pretty much sits on the edge of the Rim.

Well, we'd anticipate that several of you HAZ "regulars" will have some opinions to express. Therefore a note of "decorum" and legalities is in order. We suggest you use the words "supposedly" and/or "allegedly" or some other conditional synonym when refering to any supposedly guilt or action in this case. It is MUCH to wide open of a case to risk getting you or Joe sued over some statement that might wind up in discussion here.

Yes, it is a most compelling case to follow--just be careful "HOW" you say what you say about it and your opinions. Okie, dokie?

J&S

[Davis2001r6]

Thanks for making this point. A little while after posting the note, we thought....hum...someone's going to take issue with the phrase "poor hiker guy." At first we thought of going back into the message to correct its context. But then, we thought, "let's see if someone actually DOES take issue." SO, thanks for taking up the challenge.J&S

Funny!

Yes truly a lose-lose situation indeed.

[joebartels]

07:42 AM Mountain Standard Time on Thursday, June 15, 2006
By The Associated Press


FLAGSTAFF -- A retired Phoenix-area teacher is facing a prison sentence after being convicted in Flagstaff of second-degree murder in the 2004 shooting death of a man walking along a trail.

After the verdict was handed down, Harold Fish, 59, was taken into custody yesterday.

Fish's sentencing date will be announced Monday.

According to state law, Fish could get anywhere from ten to 22 years in prison.

Fish maintained at trial that two dogs in the care of Grant Kuenzli rushed him as he exited the trail in southeastern Coconino County.

To protect himself, Fish says he pulled a 10-mm handgun and fired a warning shot to keep the dogs away. Fish says Kuenzli then rushed him threatening death or harm.

Authorities say Kuenzli was shot three times in the chest.

Two of the wounds were fatal.

[Al_HikesAZ]

In response to joe bartels' reply:
Truly a lose-lose for everyone involved, but the story is not yet over.
I saw this additional information on the story. As you might expect, an appeal is in the works.
(dead link removed)

The prosecution argued that Fish overreacted and took a man's life when other options were available and that self defense was not justified.

A. Melvin McDonald, one of Fish's attorneys, said the verdict would be appealed. McDonald said jurors were not allowed to hear evidence such as Kuenzli's history of violence and aggression, and the fact that he was armed with a screwdriver at the time of the shooting.

I'm not making political comments on the law or this case, I'm just stating some facts here:
Fish was convicted under the old self-defense law. Where proving self-defense was the burden of the defendant. AZ will soon have a new self-defense law where the burden shifts to the prosecution to prove that it was not in self-defense.

[seehowthesun]

The stereotype of the crazy gun-toter just itchin' to 'defend him/herself' is just about as nutty as the image of a crazy dog person with a pack of wild animals off leash trained to maul all innocent hikers.

But weren't the dogs golden labs? And wasn't the deceased an 'assistance dog' trainer? Naturally the shooter wouldn't know this, but it seems unlikely that dogs like this would be attacking him. And three shots to the chest??? Wouldn't one have been enough? Was he standing over him shooting the last two after he was already on the ground? Does the fact that they found a screwdriver on this guy mean that he was running at the shooter making stab motions with his phillip's head? Does anyone know why this paragraph is made entirely of questions?

I've found that as long as you don't just freak out the second you see it, even a wild dog in Mexico will be complacent, if not friendly. We've all come across countless dogs off leash. It's just something you encounter as an outdoor enthusiast. A previous poster said that she is afraid of nothing more than dogs on a trail. Just keep your cool, and maybe even whistle at them or hold your hand out palm up, and you might not even have to kill anybody.

Enjoy your hike, don't go nuts if you see an animal while outdoors, and if faced between a possible dog bite on your hand or murder on your conscience, just take one for the team.
P.S. leash your dogs on high-traffic trails

-love, mike

Guns don't kill people...no wait, wait, that's exactly what they do
Direct all hate mail to my email, not here.

[david_allen_3]

Would you rush a man firing a loaded gun? Neither would I.
Would you threaten to kill him? Neither would I.
Would you shoot a man running at you threatening to kill you after you've pulled your gun and given a warning shot?

[soren2004]

Would you rush a cop and threaten to kill him/her?
Would a cop get convicted of anything if he shot and killed a man who both threatened and rushed him/her?

I guess that in some cases people are convicted based upon who they are and not what they did.

[hikeaz]

In response to soren2004's reply:

No one established that the gunman was threatened OR rushed by the victim...... nor was it established that the dogs were ever anything but friendly throughout their lives. That's what the gunman had to (try and) overcome in presenting his defense.

I DO agree, however, that Cops are afforded much more latitude when determining the allowable use of deadly-force. And, although not a scientific opinion, I believe that had the gunman BEEN a Cop (even off-duty) that this verdict might (likely would) have gone the other way.

[PaleoRob]

I'm a dog owner, and I love my dog, and nothing scares me more on a trail ,other than a hungry mountain lion trapped in a box canyon, than uncontrolled dogs on a trail. I take my dog everywhere we go hiking, if possible, and its always on a leash. No matter how much training you put into your dog, there is never any 100% guarantee that your dog will obey. The only way to keep your dog under control is if its leashed. I think that unless you are totally off-trail, you should always have your dog on a leash. It could be long, but the important point is that you never know when you're going to run into someone on a trail. Even if there's no cars at the trailhead, someone could have arrived after you. I know dogs love to roam free, and it may not seem fair, but people complaining about dogs running free is why dogs are being banned from trail after trail across the southwest. My heart always jumps when I'm hiking with my dog, and we come across another dog on the trail - of course the two are wanting to meet each other - they're dogs! But not every time we've met has the other dog been friendly, and often the owner is no where around.
"He always comes back when I call him/eventually" is something I hear from my nonleash friends, I don't like it. The dog has always come back, so far, when you call, and you don't know what they're doing when you can't see them.
Leash your dogs! If there had been leashes on the dogs in question in this case, the shooting likely would not have occured. Or if it had, there might be less doubt to if Fish was being attacked or not (leashes taken off of the dogs, etc.).
Yes, most dogs are friendly most of the time. But not all dogs, and not all the time. If the choice is between getting bit on the hand or taking another person's life, I'll obviously take being bitten on the hand. But you don't know if its going to be a bite on the hand/wrist, or a full on mauling until its too late.

[AK]

This debate could go on forever. We can put whatever spin we want on it, but the fact remains that one man is dead and the other is fighting for his freedom.

[soren2004]

In response to soren2004's reply:

No one established that the gunman was threatened OR rushed by the victim...... nor was it established that the dogs were ever anything but friendly throughout their lives. That's what the gunman had to (try and) overcome in presenting his defense.

I DO agree, however, that Cops are afforded much more latitude when determining the allowable use of deadly-force. And, although not a scientific opinion, I believe that had the gunman BEEN a Cop (even off-duty) that this verdict might (likely would) have gone the other way.

So maybe a lesson learned from this could be that if you choose to carry a firearm while hiking that it might be a good idea to have some written proof that you have extensive (or at least some) firearm training or you might end up in this same situation?

It's not a guarantee. But this same situation happens to officers often and the public's general conception that the police are of sound mind and are well trained might be the difference between freedom and prison.

[CanyonWhisper]

The jury found Harold Fish guilty. The sentencing is next month.

I am starting a web site to try to raise money for Harold Fish's defense. I'm just getting started, but I do have the Motion for New Trial posted as my current main page. This gives a good synopsis of the case and contains many of the facts that the jury and public at large were not allowed to know. I have intentionally left some names out to protect their privacy as will be evident when you read it.

Those in Coconino County may want to consider the behavior of the prosecutor and judge in coming elections.

http://www.haroldfishdefense.org/

[AK]

I have been an avid firearms enthusiust (aka Scary NRA Malitia Types as some people call us) since I was a young buck. I own several firearms and have a CCW. I also carry a handgun when i'm in the backcountry. I usually try to avoid discussions such as this because of the never ending debates but, after reading the "MOTION FOR NEW TRIAL" document, there are a few things that raise red flags such as:

As quoted from haroldfishdefence.org:
"The defendant adamantly maintains that decedent Kuenzli was armed when he charged the defendant. A screwdriver could have killed or maimed Fish, creating deadly disfiguring injuries. The defendant maintains that the jury should at least have been allowed to consider that evidence and to give the screwdriver in the decedent's rear pocket whatever weight that they deemed appropriate."

If Kuenzli had been brandishing it in a threating manner, Fish would have been justified in using deadly force.

"Grant Kuenzli then attacked Mr. Fish while yelling death threats. Mr. Fish was forced to fire at Kuenzli, killing him at point blank range."

So did Kuenzli pull the screwdriver out of his pocket as he "attacked" Fish?

From Arizona Title 13 Criminal Code
13-404. Justification; self-defense

A. Except as provided in subsection B of this section, a person is justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.

B. The threat or use of physical force against another is not justified:

1. In response to verbal provocation alone; or

2. To resist an arrest that the person knows or should know is being made by a peace officer or by a person acting in a peace officer's presence and at his direction, whether the arrest is lawful or unlawful, unless the physical force used by the peace officer exceeds that allowed by law; or

3. If the person provoked the other's use or attempted use of unlawful physical force, unless:

(a) The person withdraws from the encounter or clearly communicates to the other his intent to do so reasonably believing he cannot safely withdraw from the encounter; and

(b) The other nevertheless continues or attempts to use unlawful physical force against the person.

13-405. Justification; use of deadly physical force

A person is justified in threatening or using deadly physical force against another:

1. If such person would be justified in threatening or using physical force against the other under section 13-404, and

2. When and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly physical force.

It seems that both sides made errors both in the courtroom and on the trail that day. Draw your own conclusions.

[CanyonWhisper]

In response to CanyonWhisper's reply:

I have taken the page down until sentencing. I'll post here again when it is back up.

[CanyonWhisper]

In response to AK's reply:

I had the exact same observation - that a tool is a tool, not a weapon until it is used as such. The problem with it is that if they had been in a struggle, the screwdriver could have been pulled and used. Therefore he is considered as armed, just as if someone had a gun in their pocket but did not pull it. They are still armed.

"1. In response to verbal provocation alone; or "

Kuenzli was yelling death threats as he was attacking. Kuenzli's attack was verbal and physical.


CW

[Al_HikesAZ]

In response to CanyonWhisper's reply:
I read the jury Foreman's comments in an Arizona Republic article about the appeal. The jury was conscientious. I am now convinced that they reached a just verdict based on the evidence.

[hikeaz]

In response to AK's reply:

I had the exact same observation - that a tool is a tool, not a weapon until it is used as such. The problem with it is that if they had been in a struggle, the screwdriver could have been pulled and used. Therefore he is considered as armed, just as if someone had a gun in their pocket but did not pull it. They are still armed.

"1. In response to verbal provocation alone; or "

Kuenzli was yelling death threats as he was attacking. Kuenzli's attack was verbal and physical.


CW

There was no corroboration of this contention- merely the word of the shooter.

[CanyonWhisper]

In response to hikeaz's reply:

http://www.haroldfishdefense.org/ is now back online. Read it and see if you think Hal Fish got a fair trial.

In response to al1inaz's reply:

Since the shooter was the only one who survived the attack, what other source of information is there? To me, it doesn't seem logical to assume someone is lying just because there is not a witness. Although it would have been better all around if there was a witness. On the other hand, rather than hiking out, getting law enforcement and taking them back to the scene, he could have just left the attacker lying there.

CW

[Al_HikesAZ]

In response to CanyonWhisper's reply:
This is truly a tragedy for all involved.
Here is the article to which I referred from the AZ Republic of 08/01/06 regarding the Jury Foreman.
(dead link removed)

Jury in no hurry to convict hiker, foreman claims
Associated Press Aug. 1, 2006 12:00 AM

FLAGSTAFF - The jury foreman in the case of a retired Phoenix-area high school teacher convicted of killing a hiker said there was no rush by jurors to reach a verdict.

The foreman, Michael Nelson of Flagstaff, said the defense team for Harold Fish is wrong to assert that at least one juror hurried her decision because she planned to open a new business the next day.

The defense is asking for a new trial in part because of the alleged juror misconduct.

"I wouldn't have allowed us to come to a hasty decision," Nelson said.

"In fact, I was the last one to sign on the dotted line, and I wasn't about to make a hasty decision."

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

The jury convicted Fish, 59, of second-degree murder in June, and he faces 10 to 22 years in prison when he is sentenced Thursday.

Fish shot and killed Grant Kuenzli, 43, on May 11, 2004, after they encountered each other on a hiking trail north of Payson. Fish contended the shooting was self-defense, telling investigators that Kuenzli's dogs rushed him, he fired a warning shot at them and then Kuenzli charged him in a rage. Fish shot him three times in the chest.

Nelson said deliberations centered on Kuenzli's last seconds. He heard a shot, looked up and saw a man shooting his dogs.

"We figured he was running down to save his dog," Nelson said. "They were probably like one of his children."

Jurors were split 4-4 on the first day of deliberations, Nelson said. But that changed after they reviewed the testimony of a medical examiner who said Kuenzli was turned away with his hands up when the first shot hit, striking his hand before entering the side of his chest.

"So he (Kuenzli) was like protecting himself, and they were defensive wounds," Nelson said. "They were not antagonistic."

That swayed the jurors and they soon voted to convict.

"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 jury was also troubled by several discrepancies in Fish's story that varied in investigator interviews and grand jury testimony, Nelson said.

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

"His actions weren't allowed under the law," Nelson said. "I stand by our verdict. Mr. Fish is guilty."

Here is how the Payson Roundup carried this story
(dead link removed)

[hikeaz]

In response to hikeaz's reply:

http://www.haroldfishdefense.org/ is now back online. Read it and see if you think Hal Fish got a fair trial.

In response to al1inaz's reply:

Since the shooter was the only one who survived the attack, what other source of information is there? To me, it doesn't seem logical to assume someone is lying just because there is not a witness. Although it would have been better all around if there was a witness. On the other hand, rather than hiking out, getting law enforcement and taking them back to the scene, he could have just left the attacker lying there.

CW

"Jurors were split 4-4 on the first day of deliberations, Nelson said. But that changed after they reviewed the testimony of a medical examiner who said Kuenzli was turned away with his hands up when the first shot hit, striking his hand before entering the side of his chest.

"So he (Kuenzli) was like protecting himself, and they were defensive wounds," Nelson said. "They were not antagonistic."

That swayed the jurors and they soon voted to convict.

"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 jury was also troubled by several discrepancies in Fish's story that varied in investigator interviews and grand jury testimony, Nelson said.

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

"His actions weren't allowed under the law," Nelson said. "I stand by our verdict. Mr. Fish is guilty." "

[CanyonWhisper]

The source material for my reply is at http://www.haroldfishdefense.org

>>"Jurors were split 4-4 on the first day of deliberations, Nelson said. But that changed after they reviewed the testimony of a medical examiner who said Kuenzli was turned away with his hands up when the first shot hit, striking his hand before entering the side of his chest.

>>"So he (Kuenzli) was like protecting himself, and they were defensive wounds," Nelson said. "They were not antagonistic."

>>That swayed the jurors and they soon voted to convict.

III. PROSECUTORIAL MISCONDUCT

Near the beginning of these proceedings, defendant moved to disqualify the Coconino County Attorney's Office from prosecuting this case because of prosecutorial misconduct directed against Detective Scott Feagan. At the time, it was alleged that the actions of Mike Lessler and Roberta McVickers, in seeking Scott Feagan's ouster as lead investigator and later pressing for criminal charges against Feagan, had created a chilling effect on the search for truth and constituted a grievous deviation of the prosecutor's responsibilities to do justice.

On the final day of trial, Detective Cornish admitted that he had been instructed to deviate from this investigative standard by the Coconino County Attorney’s office and to specifically abstain from any investigative pursuit that would have reflect unfavorably on Grant Kuenzli.
.
.
.
>>"We came to distrust his testimony," Nelson said. "I wish he had gotten onto the stand to explain the discrepancies.

If it had been me, I would have taken the stand. But please understand the logic in not taking the stand. Lying is less evil than murder. Therefore a murderer would lie. If someone is being accused of murder, how much weight does his testimony really have if you don't know if he is telling the truth? What if he did come up with logical, believable answers to those situations? As logical and believable as they may be, they may still be a lie if the defendant is guilty. Therefore, taking the stand and being a witness against yourself buys you nothing. So why do it?

>>"His actions weren't allowed under the law," Nelson said. "I stand by our verdict. Mr. Fish is guilty." "[/i][/quote]

See:
http://www.azleg.gov/FormatDocument.asp ... ud.doc.htm

There was an error in the law. It was corrected by the legislature. But the judge wanted the case tried under the old law.

If the object is to apply justice, what is gained by trying a man under an unjust, and admittedly flawed law? Why not try the case under the corrected law?

That the jury is confident in their decision is not in question. The question is whether they were allowed to know all of the relevant facts. The answer is NO.

* Evidence was withheld from the jury by removing TEN WITNESSES with testomony damaging to Keunsli.

* The lead detective was replaced.

* The successor "had been instructed to deviate from this investigative standard by the Coconino County Attorney’s office and to specifically abstain from any investigative pursuit that would have reflect unfavorably on Grant Kuenzli."

Given that testimony was withheld and manipulated, what other conclusion could the jury have come to?

The jury did the best they could with blinders on. Nobody is faulting the jury.


CW
http://www.haroldfishdefense.org/