His lawyer, former Arizona U.S. Attorney Mel McDonald, required a $75,000 retainer for his services. Tears streamed down his wife's face as she wrote the check to McDonald, Fish recalls.

Fish thought he had a solid self-defense case, but in 2006, he was convicted and sentenced to 10 years in prison.

About that time, though, firearms advocates were pushing nationwide for laws that made it tougher to prosecute homicide suspects who argue self-defense. With the Fish case as a rallying point, state lawmakers pushed through a new law a few months before a jury found him guilty.

In fact, experts say, the new law was really Arizona's old law — it changed the rules on self-defense claims to how they were before 1997. In that year, prosecutors lobbied lawmakers successfully to tweak the rules on justification of force.

Alan Korwin, author of the Arizona Gun Owners Guide, calls what the prosecutors did "despicable." With no debate, he says, they managed to slip in a fundamental change. If you killed someone between 1997 and 2006 and claimed self-defense, the law required you to admit guilt while simultaneously trying to prove the slaying was justified.

Now, the burden of proof has shifted back to prosecutors. If a homicide suspect claims self-defense, it's up to the state to disprove that claim.

Korwin says the distinction is important. The 1990s standard required suspects to proactively prove their claim, sort of like how a prosecutor must proactively prove a criminal charge — and do it without the vast resources and powers of the state.

Kathleen Mayer, the legislative liaison for Pima County Attorney Barbara LaWall, says the "average jury member" doesn't care about the technicality — meaning the change in law has been overblown.

"Juries expect us to prove that it's not self-defense," regardless of which side has the greater burden of proof, she says.

The 2006 law hasn't had any effect on her office, Mayer maintains. She believes it was designed solely to help Fish.

But local use-of-force expert Michael Anthony disagrees that the change has had no impact. The Valley defense attorney and former prosecutor, who acts as a consultant to lawmakers on self-defense statutes, believes prosecutors around the state are choosing to press charges against fewer suspects like Fish and Garfield. He points out that every county attorney in the state, except for Maricopa County Attorney Andrew Thomas, argued against the 2006 law change.

Anthony sees the change, which put Arizona back in line with 48 other states, as fundamental.

But the law change wasn't what helped Fish.

Supporters of Fish hoped he would be granted a new trial after the 2006 law passed, but the new law took effect on April 24 of that year, and the Arizona Supreme Court quickly ruled that it wasn't retroactive.

His case, however, was overturned by the Arizona Court of Appeals on technical issues unrelated to the change in the law, and last year he was granted a new trial.

After serving three years, Fish found himself a free man. A new Coconino County Attorney announced last year that he wouldn't re-charge Harold Fish.


An old saying of firearms aficionados goes, "Better to be judged by 12 than carried by six."

Roger Garfield, sitting in his cell, is not so smug. If he could turn back time, he says, he would not have used a gun on Cain — he would have shot him with an "industrial-strength Taser" instead.

Though he believes he was justified in killing Cain, Garfield says he knows — in hindsight — that he had other options.

In that respect, he has a different mindset than Fish, who tells New Times he would've shot Kuenzli even if had known he would spend the same three years — or even more time — in prison.

Both the Garfield and Fish cases show that even Arizona juries look skeptically at self-defense arguments.

Arizona law allows you to threaten to kill someone for trespassing, (assuming you have property rights). And it allows you to kill someone if you think that such drastic action is needed to save your life, or the life of another. Arizona even has "Wild West" laws that allow you kill child rapists, arsonists, and armed robbers.

One big caveat, though, is that a would-be action hero must be a "reasonable person." Shooting an unarmed person — unless you know in advance that the person is fully capable of killing or severely harming you — probably isn't going to be seen by society as reasonable.

Yet there's the added wrinkle in Garfield's case: Even if jury members made the right call, he's still getting screwed by the system.

He should be getting a new trial, using new rules for self-defense-related cases, but the Arizona Legislature can't convince the courts that they must apply a new law retroactively.

Precisely how the new law would help Garfield is unclear, but Garfield's attorney, Larry Debus, filed a motion in July that outlines some possible new defenses.

Debus plans to argue that he should've been allowed to tell the jury how Arizona law allows a citizen to kill someone to protect himself against aggravated assault. Debus will argue that Cain could have met the definition of aggravated assault without ever touching Garfield.

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8 comments
Alittletruthphoenix
Alittletruthphoenix

Attorney Sara J Powell is nothing more than a scum bag personal injury lawyer - check her website out - she proudly displays her membership in the "Million Dollar Fourm" at the bottom of the page - a group of attorney whom proudly proclaim their winning awards in excess of 1 million dollars for clients -

treasurehunter
treasurehunter

I go in this antique mall all the time. I HAD NO IDEA this even happened.

1shot1kill
1shot1kill

Interesting article.

The Garfield - Cain shooting has limited similarities to the Fish case.They both sound like "suicide by self-defense" since the deceased were both mentally / emotionally unstable.

For that matter, Garfield sounds like he doesn't have a full magazine either, e.g. Grand Canyon trip.

The background of provocation between Garfield and Cain certainly adds to the complexity. Provocation pretty much nullifies self-defense according to current law.

As Ray Stern probably is aware, there are two bills in the legislature right now to make concealed carry legal without the training, education and permit. House Bill 2347 and Senate Bill 1108This is a scary thought although education would probably have made little difference with Garfield since it does seem premeditated (and the article slants it this way).

What is unnerving about both killings is that while the shooters will probably end up walking the streets again, both are financially devastated defending themselves in the legal system. Putting the burden of proof on a shooter for self defense doesn't seem compatible with innocent til proven guilty.

The article is a severe indictment of both the public mental health system and the emergency 911 line. Cain was a danger to himself from people like Garfield and should have been in treatment. Guns laws are in place because even though the cops would rather the public not take the law "into their own hands", they acknowledge they can't be everywhere at once.

Publius Maximus
Publius Maximus

Don't worry, Russell Pearce will get you a special bill that allows Arizonans to shoot transients retroactively, so it will apply to Garfield. Joe Arpaio is probably preparing a medal for him.

Teo Buneo
Teo Buneo

From what the other tenants at the store have to say about Garfield and his anger problem and his own words demonstrate that he's a lily livered wimp who planned carefully for his murder of Mr. Cain. The man should get the full 21 years, Those jurors should have convicted on the 2nd degree charge. If you plan a murder it's first degree murder! "Tough Guy" Tom Horne should be shown the door by voters if he's staking his career on support of this murderous wimp. I've worked with little chicken shits with big chips on their shoulders and Garfield fits that description perfectly. I wonder how long it'll be before Mr.Fish murders another stranger that scares him?

mahkai
mahkai

Aggravated assault is more serious than simple assault. Cain would have had to have had a weapon in his possession in order for this to be the case. From this article, it is apparent that he did not.

Interesting article. Thank you.

Peoriaman
Peoriaman

and how about the man, in his own home, waving a bat at police in the City of Peoria was shot dead with two bullets? Wife calls police, police enter home, and kills the man. Great, time we all carry guns. I wouldn't be surprised this guy goes down, but the the murdering police get off scott free.

 
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