Shoot to Kill: An Antique Dealer Has One Last Chance at Freedom After Gunning Down an Unarmed Homeless Trespasser
Before the fatal shooting, there was the red couch.
It was soiled, stained, and reeked of cigarette smoke. A few days after bringing it into the Central Phoenix antique store, Ruby Sias realized it needed to be moved outside.
She asked the new owner's son to help her take it to the parking lot, where someone would probably take it away as a freebie.
"That's what I feel really bad about," says Sias, a no-nonsense, auburn-haired woman in her late 60s, standing behind the counter of the store, the light of a cloudy winter day shining through a window behind her. "That's what started the whole thing."
The morning after the couch was hauled out, on January 17, 2006, she recalls greeting her new boss at the back door to the parking lot as he arrived at work.
Roger Garfield, then 54, had been the owner of the Historic District Antique Mall at Seventh Avenue and McDowell Road for exactly two days.
He pointed at the couch, clearly in a foul mood, as Sias tells it.
"This is why you don't put things like that out there," he said, according to Sias. "Now look what's happened."
A heavyset, white-bearded homeless man was sitting on the couch, staring at them. Near him was a shopping cart full of cans and other items.
Sias, who worked as assistant manager for Garfield and, along with other antique dealers, sub-leased her own retail space inside the store, says her boss told the man on the red couch to get lost. But the man, who they later learned was named Robert Cain, a 49-year-old transient, argued with Garfield.
"Who are you to tell me I have to leave?" Cain asked the store owner, says Sias. "I can rest anywhere I want to."
Garfield tells New Times a somewhat different version of events. He says he allowed Cain to sleep on the couch that day and that the incident began after he took out some garbage and awoke Cain by accident.
When Garfield dropped the Dumpster lid with a bang, he says, Cain shot him a mean look — a look Garfield says he "didn't think a human could produce." Garfield says he apologized, then told the man, "It's probably time you go back to doing whatever it is you do."
Garfield says the transient, whom some in the neighborhood called Santa, began yelling at him. Garfield says he retreated into the store and locked the back door. Cain began shaking the metal-and-glass doors as if he were trying to break in, Garfield says.
That's when the store owner made the first of three 911 calls over 19 minutes. But the police never showed up.
Sias had ducked back into the shop to help a customer; she doesn't remember hearing Cain banging on the doors.
The antique "mall" has a cavernous interior, crammed with furniture and eclectic knickknacks on tables and shelf cases; lots of light gets in through glass windows and doors at the front and back. Chains and a padlock now secure the door closer to the shop's northwest corner. Back then, both that door and another front door a few feet east were kept unlocked during business hours.
When Cain suddenly came through the door nearest the corner, Ruby Sias — by then behind the nearby counter — knew he was being a nuisance. She wasn't afraid of him, she says, but she asked him to leave.
Cain stood his ground. He continued to harangue Garfield, who had walked up from the rear of the shop. Sias says Cain insisted that he could go anywhere he liked.
"He kept backing me up, getting in my face," says Garfield, who called 911 again. The police dispatcher told him to remain calm and assured him that officers would be there shortly. Court records show the dispatcher directed officers to a nearby vehicle collision instead.
During one of Garfield's frustrated calls to police during the confrontation, Sias recalls, Garfield told the operator, "What do I have to do, take care of this myself?"
Garfield retreated outside, through the other set of front doors facing McDowell Road. Cain followed him out. Sias doesn't know for sure what happened next, but Garfield says he figured Cain was going to beat him up, maybe kill him. Since the confrontation had been going for about 15 minutes, with no cops arriving, Garfield says he thought he was more likely to get help if motorists along the busy street saw it happen.
Once outside, according to Garfield, Cain said, "You better know that I'll be back, and when I am, you're going to welcome me. It's no more your store than mine. And if you don't welcome me, you may not live to be sorry."
The man walked off, Garfield says, as he held his cordless phone to his ear on his third call to police. Now that Cain was gone, though, there was no reason for officers to respond.
The incident profoundly affected Garfield. A few weeks later, the former Valley insurance agent bought a small, semiautomatic handgun. He let it be known to the other antique dealers who worked in the shop that the weapon was there in case of another run-in with Cain.
"He openly said to me, [and] to several other people, 'I got this gun. If he comes in the store again, I'm going to shoot him,'" says Pam McMillen, another antique dealer who leased space in the store in 2006.
The situation came to a head that April when Cain confronted Garfield inside the shop one last time.
As the unarmed homeless man advanced on him, the store owner shot him four times.
Cain collapsed and died.
Then he became an even bigger problem for Garfield.
At first, the cops treated the homicide as a case of self-defense. A search warrant was served at the store, and Garfield was questioned but not arrested.
Garfield maintains that he was within his rights to shoot, claiming he was in fear of his life and the lives of others in the store. This is Arizona, after all, a state that now allows firearms in bars and covers its citizens with some of the nation's strongest laws justifying use of force.
Yet three antique dealers who worked in the store don't understand how Garfield's action constitutes self-defense. Ruby Sias, Pam McMillen, and Tom Samora say they hadn't found Cain scary.
And Garfield never expressed fear of him, they say. It was more like the shooting was Garfield's way of ridding himself of a problem, McMillen says.
"It was something he knew he was going to do," she says. "It was planned — planned and executed."
Eventually, a Phoenix police detective came to the same conclusion and submitted the case to the Maricopa County Attorney's Office for prosecution. More than a year later, Garfield was indicted by a grand jury for second-degree murder.
Garfield stayed on as store owner as he fought the charge. He opened his wallet for his defense, hiring the services of top criminal attorney Larry Debus. The case plodded along in the court system for two years before Garfield's 13-day trial last spring.
On April 9, 2009, on the third anniversary of the shooting, eight jurors found Garfield innocent of second-degree murder, but guilty of manslaughter.
Then came a spate of good luck for Garfield. In August, his conviction was tossed, and he was released from jail pending a new trial, all because of a guy named Harold Fish.
In a 2004 case somewhat similar to Garfield's, Fish shot and killed an unarmed man he said had threatened him on a secluded hiking trail near Payson. The case received a lot of press, and Fish became a poster boy for the National Rifle Association and other advocates for the use of firearms in self-defense.
The case also brought attention to a nine-year-old state law that made it easier to prosecute people who claimed to have killed someone justifiably. The Arizona Legislature took up the cause and changed the law, shifting the burden of proof in self-defense cases from the defendant back to the state. The law applied to everyone whose alleged crime occurred before April 24, 2006, the date the law took effect.
Yet lawmakers clearly wanted to help Fish, who had been tried under the pre-2006 law. Legislators argued that they meant the law to be retroactive. The state Supreme Court declared it wasn't, leaving Fish to face a prison sentence.
Lawmakers tried again in 2009 to make the 2006 law retroactive for anyone who hadn't yet pleaded guilty. Governor Jan Brewer approved the change.
The news was thrilling for Garfield, who had missed the cutoff day for the new law by a mere 15 days. In jail for nearly five months following the guilty verdict, he was released in August pending a new trial. His manslaughter conviction was tossed.
A setback soon followed: On December 31, the Court of Appeals ruled that because the 2009 law tries to go around a state Supreme Court decision, it's unconstitutional.
In January, Garfield's conviction was reinstated. He was thrown back in jail, where he now sits. He's scheduled to be sentenced on April 16 to between seven and 21 years in prison.
But he might get another chance.
The Arizona Supreme Court is expected to revisit the question of retroactivity in a few months. If the high court reverses the previous decisions, Garfield will be set free again as he awaits a new trial.
Whether he deserves to get off scot-free for shooting Cain, though, is another matter.
The corner of Seventh Avenue and McDowell Road, just north of Interstate 10, used to look rougher. Not long ago, on the southwest corner, the Emerald Lounge was replaced by SideBar, a Starbucks, and a Pei Wei.
But the boxy building that houses the Historic District Antique Mall appears as dilapidated as the shuttered antique store across the street, and the area — sometimes called one of the "gateways" to downtown Phoenix — still evokes a depressed urban feel.
The homeless are part of the corner's landscape. Transients often sleep in the vacant lot just south of SideBar. They wander north on Seventh Avenue from a homeless shelter on Jefferson Street, seeking money for a meal or their next hit.
"If you live or work in downtown, you deal with homeless people," says Sara Powell, an attorney with an office at Seventh Avenue and Portland.
Powell feels sympathy for the homeless. In fact, she helped Cain's adoptive family sue Garfield after the shooting.
Yet the transients can be scary, she admits. She keeps a can of mace in her office. She's arrived at work to find people sleeping on the office's porch. In the past, homeless men have walked into her office and sat down to escape the scorching sun. Before she met Cain's family, the antique-store shooting and the beating death of a local elderly man in the area caused Powell to begin habitually locking the front door when she's inside.
Next door to the Historic District Antique Mall, in the same building, is the campaign headquarters of Tom Horne, the state schools superintendent who's running for Arizona attorney general. On the inside of the door is a handwritten sign, warning all workers to keep the door locked. Chuck Johnson, one of Horne's volunteers, says he adheres to the advice — he's seen homeless people walk in unexpectedly, which can be disconcerting when he's there alone.
Robert Cain, or Bobby, as his family called him, was one of many transients who hung out in the area, but he was hardly typical.
Cain's family says he was homeless by choice, though apparently his mental state didn't give him much choice. His adoptive parents and sisters describe Bobby Cain as a tortured soul who rejected a conventional life for the "freedom" of homelessness. In the Cains' modest Surprise home, the family displays pictures of Cain's life both before and after his mental illness set in.
The 1970s photos portray a strapping young man standing next to his blond sweetheart, and with his hand on the cowling of a single-engine airplane he used to fly. In pictures from a brief family gathering in the early 2000s, Cain looks tired and old for his age, sporting his white beard and some heft around his middle.
A.J. Cain, his adoptive dad, says his son's original name was Robert Louis Fuller Jr. He was born to a sailor father and a mentally ill, sometimes-homeless prostitute mother in California. The boy and his older sister, Barbara, found themselves in a Phoenix foster home in the mid-1960s, the elder Cain says.
The two siblings — Bobby was 6 or 7, and Barbara about 13 — became friends with the Cain girls, who lived on the same block. A.J. Cain and his wife, Mae, took in Bobby and Barbara as foster children. They would later formally adopt the boy, renaming him Robert Lee Cain.
Bobby Cain was smart and athletic — a "great kid," says his father, a retired dairy worker and beef-company manager.
"He never ever said one word disrespectful to me," A.J. Cain says.
The Cain sisters loved having a brother — and he looked out for them. Bobby grew to be a stocky boy and played football at Agua Fria High School in Avondale.
On their way to school, Bobby once let it be known that his sister often sat next to him on the school bus. "None of the boys would sit by me on the bus," adoptive sister Judy Anderson recalls.
Yet Cain wasn't really that big.
Garfield, in retrospect, imagines Bobby Cain towering over him, but court records show Cain stood an average 5-foot-10 — only an inch taller than Garfield. Search warrants list Garfield's weight as 180 pounds — the same weight listed for Cain in Phoenix Municipal Court records. According to his parents, Cain weighed 180 pounds on the day he died, though his weight tended to fluctuate.
Cain later joined the Air Force and moved to Texas. After he got out of the service, he worked for a few years at the Draughon-Miller Central Texas Regional Airport in Temple as an operations specialist — manning the radios, performing firefighting duties, and refueling planes, says an airport official who knew of him.
Cain married, helped build his own home, and took up flying as a hobby.
He was never violent, family members say, and was never known to use drugs or alcohol. But in the mid-1980s, Cain's mind began to unravel. He began hearing voices and acting strangely. He couldn't get along with his wife. One day, he abruptly left home with $5,000 in cash in his pocket. He left "his new Ford Mustang in the driveway," A.J. Cain says.
It was a few years before anyone heard from him. By then, he was a homeless man on the streets of Phoenix.
After that, his family would see him only occasionally. He was ultimately diagnosed a paranoid schizophrenic and lived for a time at the Arizona State Hospital. He believed in a hassle-free existence and wouldn't take money from family members or anyone else, A.J. Cain says. Bobby Cain took advantage of free meals at homeless shelters but otherwise tried to find odd jobs to support himself.
"If you tried to give him a dollar on the street, he wouldn't take it," his adoptive father says. "If you insisted, you'd just make him angry."
One year, when he was taking medication for his paranoia regularly, Cain saved money and bought his mother a diamond bracelet for Christmas.
While he was never busted for violent or drug crimes, Cain built up a rap sheet for offenses such as trespassing and obstructing a highway. Family members say he could be "loud and boisterous" at times, but that's as far as it went.
Unlike a lot of homeless people, says Joel Hamilton, former owner of the Antique Marketplace, on the northeast corner of McDowell and Seventh Avenue, Cain was always clean; he was apparently able to find someplace to shower each day. The transient was a "regular" on the corner, Hamilton says, often sleeping in the area or pushing a shopping cart containing his belongings.
Hamilton says he sometimes talked with Cain, who — unlike other homeless people in the area — wasn't trying to avoid notice.
"He was never, at any time, aggressive toward me," Hamilton says. "He was very engaging. He had a couple of theories about the government; he'd been in the military. If I asked him to move on, he would."
Cain didn't show Garfield the same respect. He had a knack for pushing the prickly store owner's buttons.
Roger Garfield knew before he took over the antique shop that the area harbored a sizable homeless population, but he says he wasn't prepared for someone like Cain.
In early 2006, after running his own business as a Valley Farmer's insurance agent for more than 25 years, Garfield finally fulfilled his dream of opening his own antique store. He'd had a lifelong interest in antiques and collectibles and had a knack for scoring quality items at garage sales.
But his life was in flux. He'd divorced his wife a few years earlier, and she'd ended up with his insurance business. He had a steady girlfriend, though, who would become his current wife.
Garfield paid rent to state schools Superintendent Horne, the property owner, and decided which other dealers could set up and lease space in the store.
Despite his interest in retailing, Garfield wasn't a people person. Sias and other dealers at the store describe him as curmudgeonly, infamous for the way he sometimes ripped into a customer or an employee.
A 2009 listing in New Times' Best of Phoenix gives the Historic District Antique Mall a "Best Overhaul" award, in part because Garfield — who isn't named in the short article — was no longer there. Robrt L. Pela, the New Times writer who penned the blurb, says he referred to Garfield as a "tyrant" in the piece because the shop owner had once yelled at him for asking the price of something. On the second and last time Pela went in the Garfield-owned shop, he'd heard Garfield screaming at a female clerk.
Antique dealers Tom Samora and Pam McMillen, who worked alongside Garfield, say he was often "nasty" — though not to them.
"He flew off the handle a lot at the shop," McMillen says.
Garfield, whom New Times interviewed at the county's Fourth Avenue Jail, pauses when asked whether any of that might be true.
"Temper isn't the same as shooting someone," he says. "Should I be in prison for personality flaws?"
Garfield expresses indignation at the way he's been treated by the system. He believes he was protecting himself and the lives of customers and workers in the shop on the day of the shooting.
He says Joel Hamilton must be lying about chatting with Cain.
"You couldn't have a long conversation with Robert Cain," Garfield insists. "All he did was talk at you, and it didn't make any sense what he was saying."
Susan Brown, Garfield's girlfriend at the time and current wife (who now goes by Susan Garfield), claims to have seen Cain talking to rotten fruit he'd thrown in the street. Garfield's son, Daniel, who worked part-time at the store in 2006, says he once saw Cain screaming in apparent fury at passing motorists, for no particular reason, outside his father's store.
After the incident with the red couch, the transient drifted by the shop all too frequently for Garfield's liking. It seemed to Garfield that Cain was stalking him.
When Cain was sure no one else could see, Garfield says, the homeless man would look at him through the store windows and draw a finger across his throat. No one else reported witnessing such a silent threat to Garfield.
Garfield says he was terrified of Cain; he says some people called Cain the "anti-Santa Claus." Other homeless people in the area described Cain as "incredibly scary" and advised him, Garfield says, to watch out for the white-bearded transient.
Sias, on the other hand, says Garfield became obsessed with Cain, complaining anytime he saw the man outside. He even once rousted Cain off the bus-stop bench near the shop, she says.
Garfield says it was fear that spurred him to buy a .32-caliber Kel-Tec, one of the smallest, lightest commercial handguns ever made. Sometimes he kept it in a drawer in the store. But when he saw Cain "circling" around the business, he says, he'd strap it to his hip in a brown holster, as a deterrent.
He knew next to nothing about the firearm, he says, and had shot a gun only once in his life, when he was 19.
"I feared Roger more than I feared Robert," says McMillen. "Once he put that gun on, he was like a vigilante."
On March 22, 2006, Cain walked into the store and was quickly confronted by Garfield, who pointed the Kel-Tec at the homeless man and told him to get out. Cain left — but returned minutes later with police officers he'd hailed off the street. Cain wanted Garfield arrested for threatening him with the gun.
When the cops asked him for an explanation, Garfield lied to police. He showed them — and Cain — a toy revolver that had been sitting around in the store. He told them that's what he'd aimed at the transient.
"I got scared," Garfield says to New Times. "I thought I was going to be arrested."
He asked McMillen, who had witnessed the entire incident, to back him up, to lie to police, if necessary. McMillen says she was relieved that the cops never asked her whether the gun Garfield had wielded was real.
Cain may have been crazy, but he wasn't stupid. He argued vehemently with police that the toy revolver wasn't the gun Garfield had pointed. But they believed Garfield. They took Cain away and charged him with civil trespassing.
As it turned out, Garfield's lie only made his situation worse.
Pam McMillen's voice grows louder as she recounts the day she saw Bobby Cain die. She points to a dark stain on the carpet near a wall support.
"That's where he fell," she says, grim-faced.
McMillen, a diminutive brunette with glasses, had been helping three customers at the register on Sunday, April 9, 2006, when she noticed Cain walking in.
Knowing the short-fused Garfield had the gun, "I just knew when I saw [Cain] that he was going to get shot that day," McMillen says.
She told him immediately that he had to leave.
"God put me on this Earth to roam," she says Cain told her. Then, he demanded to see "the man with the gun," McMillen says.
Three customers in the store got spooked and fled. But about 10 people were still inside — including Garfield's brother and sister-in-law, Todd and Pamela Garfield.
The Garfield couple had been on their way back to their Flagstaff home after a visit to the Valley when they decided to stop in the antique shop to buy a vase Pamela had spotted earlier. Their timing couldn't have been worse — they walked into the store a minute before Cain.
Todd Garfield says his brother had spoken to him previously about a crazed transient who'd been plaguing him, but this was the first time Todd had seen Cain. Todd says he saw and heard Cain ranting at McMillen at the counter, then turned as his brother came from the back of the store and shouted to Cain.
According to McMillen, Garfield loudly announced, "Here I am!"
Garfield stayed just out of range of a surveillance camera mounted inside the shop.
Samora, a hairdresser in his 70s who also leased space in the store from Garfield, heard the store owner screaming at Cain to get out and Cain yelling back that he didn't have to.
"Roger said, 'I'm going to shoot you if you don't get out,'" Samora says.
McMillen doesn't remember precisely what words were exchanged.
But Garfield says he recalls clearly what Cain said:
"Do you have your gun? If you have that gun in one hand, you better have the deed to this place in the other."
The store owner held up his gun for all to see.
Garfield says Cain then asked, "Is it loaded?"
Garfield says he popped the magazine out, then shoved it back in and racked the slide.
Whether Cain said anything that sounded like a true threat, or not, Garfield claims the man's deranged behavior and size made him fearful.
But, remember, there wasn't much of a physical mismatch. And Cain had nothing in his hands. Apart from a razor blade found later in his pocket, he carried nothing else that could have been used as a weapon. Nor did he attempt to grab any of the myriad items in the store for use as a bludgeon or missile.
Asked at the jail whether he felt Cain would have killed him with his bare hands, Garfield answers without hesitation: "Yes."
Garfield's brother, Todd, says his greatest worry was that Roger wouldn't shoot — and that Cain would grab the gun and start shooting Roger and other people in the store.
Cain continued walking toward Roger Garfield, as recorded by the video camera. All the witnesses interviewed by New Times agree: Cain advanced on Garfield even as the store owner, gun in hand, repeatedly yelled at him to leave the business.
Garfield fired three shots at point-blank range with the tiny handgun. Cain kept coming.
"I saw this little red spot on his chest, and I thought, 'This is like a BB gun!'" Garfield says. So, he fired twice more.
Cain was hit four times, including twice in the chest. An autopsy showed that the third bullet passed through Cain's outstretched arm. The fourth caught Cain just as he was turning away. (A fifth bullet not only missed Cain, but also barely missed McMillen, who was standing behind Cain at the time).
Pamela Garfield, a surgical nurse, ran to Cain to try to help him. But her brother-in-law told her to stay back, warning that Cain might be dangerous.
The store grew stone-quiet. Tom Samora threw up. Todd Garfield and McMillen say they also felt like vomiting. Garfield put his gun on a shelf and waited for police to arrive.
Garfield seemed callous in the days that followed, McMillen says. When she told Garfield she was upset over the stray bullet that could've killed her, she says he responded, "You should've ducked." She moved all her items out of the store the next day, returning only this month.
Samora also soon left the shop with his collection of antiques.
Ruby Sias, who hadn't been in the store that day, says she was so upset that she took a few days off. But Garfield didn't seem to be affected, she says.
"He told me, 'It's business as usual,'" Sias says.
Joel Hamilton, the antique dealer from across the street, says Garfield showed no remorse following the shooting. Hamilton explains that, a few weeks after Cain's death, he advised Garfield to talk to a psychologist.
"He said, 'I don't have any problem with what I did . . . He's gone now, and I don't have to deal with him anymore,'" Hamilton says. "I said, 'Maybe you're in shock.' He says, 'No, I don't have a problem with it, at all.'"
Ruby Sias quit after Garfield was indicted — packed up her stuff and moved to a different store.
At Garfield's trial, which took place last spring, Sias, Samora, McMillen, and Hamilton were among the witnesses who testified against him. The jury learned the truth of the incident with the toy gun, listened to Garfield's January call to 911 in which he threatened to take care of Cain himself, and heard from witnesses who felt Garfield overreacted to Cain.
Jury members couldn't agree on the second-degree murder charge on which Garfield had been indicted. But in handing down the manslaughter conviction, they tacked on a "dangerous" designation that requires him to serve a minimum of seven years in prison.
Still free at the time, pending the conclusion of his trial, Garfield blew off the verdict hearing, causing a bench warrant to be issued for his arrest.
After agonizing late into the night on the eve of the verdict, he says, he jumped in his car and drove back roads to the Grand Canyon, looking for a cliff to jump off — "one of the big ones."
The distraught Garfield called his girlfriend from a ledge, threatening to commit suicide. Law officers patched into the call, tracked him down, and took him into custody.
Garfield gripes that the prosecutor in the case, Susie Charbel, later told a judge the suicide attempt was "phony."
After coming back from the Grand Canyon, Garfield spent the next four-and-a-half months in the Maricopa County jail waiting to be sentenced. Then, over the summer, state lawmakers tried to come to the rescue of Harold Fish — and ended up getting Garfield released, instead.
His freedom, however, would prove short-lived.
Like Garfield, Harold Fish believes his gun saved his life.
And like Garfield, Fish shot and killed an unarmed, mentally unstable transient who kept coming at him, despite Fish's threat that he would shoot the man if he didn't stay away. The case has some striking similarities to what happened to Garfield — but in Fish's case, there were no witnesses.
The retired schoolteacher from Glendale had been out hiking the Pine Canyon trail, just south of Clint's Well, on May 11, 2004, when he ran into a local transient camped off a dirt road near the trailhead.
Grant Kuenzli, as the public would later learn, was suicidal and had problems controlling his anger. When Kuenzli's two dogs spotted Fish on the trail and ran toward him aggressively, Fish fired a warning shot at the ground with his Kimber 10-millimeter handgun.
The dogs scattered as Kuenzli started running down the trail toward Fish, possibly thinking that a bullet had hit one of the dogs. As Fish tells it, Kuenzli was waving his fists and screaming that he was going to kill Fish.
"I had to assume there was something in his fists — a pocketknife, a switchblade," Fish tells New Times. "You've got microseconds to process all this info, and he wouldn't stop."
Unlike Garfield, Fish was a firearms enthusiast who had trained with his weapon. He'd even taken a class in "unarmed attack," he says. On the trail, with a crazed stranger running at him and threatening his life, Fish made his decision.
"That gun came up, and I fired three of the fastest shots I'd ever taken," he says. "He pretty much fell right at my feet."
The immediate threat to Fish was over — but then came the legal maelstrom that sucked away Fish's money and freedom. The Coconino County Attorney's Office charged him with second-degree murder.
Fish, a father of seven children, estimates he spent about $500,000 on his defense. He still hasn't paid it off. He and his wife took out a second mortgage on their home; his father also mortgaged his own home. His brothers and sisters chipped in thousands. Just as important, large amounts of money began flowing in from the NRA and strangers who had heard about his plight.
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.
That argument was among those that persuaded the Court of Appeals to reverse Fish's conviction.
Even more important to Garfield than the technicalities, however, is that a new judge and jury might see the case in a whole different light.
In a pre-sentence report filed with the court last week, senior probation officer Angela Weston recommended that Garfield, who has no criminal record, be sentenced to as little prison time as possible. Because his conviction was classified as "dangerous," he's not eligible for probation, a fact that the officer finds "unfortunate."
Weston notes in her report that although Garfield failed to call police in that final confrontation with Cain, "It appears he may have lost trust in them" after they failed to show up when he first called.
Weston further states that, after reviewing all the facts in the case, it looks as though Garfield believed he was acting to protect himself and the others in the store.
Tom Horne backs his former tenant — and he's willing to stake his political reputation on the case. As might be expected, he has harsh comments for the office of his potential Republican running mate, current Maricopa County Attorney Andrew Thomas.
"It was an abuse to bring prosecution here," Horne tells New Times. "Out-of-control prosecutors shouldn't be second-guessing [Garfield] with the calm wisdom of hindsight."
The facts seem clear to Horne: Garfield told Cain repeatedly that he was trespassing, and Cain refused to leave.
"A store owner should be able to defend himself," Horne says. Garfield "had no other motivation."
Like Fish, Garfield was ruined financially by his action. He left the store last year to concentrate on his legal defense, leaving it in the hands of Sias, McMillen, and others who had once rented space from him. After the Cain family hired attorney Sara Powell to sue Garfield, he settled the lawsuit for an undisclosed amount.
Even if Garfield gets his new trial, his former co-workers all say they will testify against him again.
Cain's family and Garfield's detractors say the former store owner is cold-blooded killer. They want him sentenced to the maximum 21 years.
"I want this man to pay until he's dead," say Judy Anderson, Cain's adoptive sister, through tears.
Get the This Week's Top Stories Newsletter
Every week we collect the latest news, music and arts stories — along with film and food reviews and the best things to do this week — so that you’ll never miss Phoenix New Times' biggest stories.
- Arizona Attorney General Mark Brnovich Seeks Removal of AZCC Chair Susan Bitter Smith
Thu., Dec. 10, 6:25pm
Fri., Dec. 11, 7:00pm
Fri., Dec. 11, 7:30pm
Fri., Dec. 11, 7:30pm
- Broken-Heart Syndrome Genes Discovered by Phoenix Researchers
- Arizona State Fair Goat GusGus Kids Around in Video After Traumatic Kidnapping