Harold Fish law gives convicted murderer new trial

By CHANNING TURNER
Cronkite News Service

PHOENIX – The Legislature can retroactively apply a 2006 law passed after local hiker Grant Kuenzli was shot to death that shifted the burden of proof in self-defense claims from defendants to prosecutors, the Arizona Supreme Court ruled Wednesday.

The ruling grants a new trial to Cesar Montes, who was charged in 2005 with killing a man outside a Tucson party. He appealed his 2008 second-degree murder conviction on the grounds that the state unfairly burdened him with proving his own innocence.

David Euchner, Montes’ attorney, said the ruling would apply to a few other cases in which the alleged offenses occurred before the law took effect.

“The burden of proof is such a big factor in this kind of a case, Euchner said. “It’s a total game-changer.”

SBA call to the Arizona Attorney General’s Office, which argued the state’s case, wasn’t returned by late Wednesday afternoon.

Prior to 2006, defendants claiming self-defense were required to prove their claims. But that year, aggressive lobbying on behalf of Harold Fish, who was accused of shooting Kuenzli, who he said was threatening him near Flagstaff, caused the Legislature to pass a law shifting the burden of proof to prosecutors.

“The previous law required a person to prove their innocence, which goes against everything in our justice system,” Euchner said. “It’s tough to win when you have to prove you’re innocent.”

Conflicting lower court rulings confused the issue until the Supreme Court ruled in 2007 that the Legislature hadn’t intended the change to apply retroactively in a similar self-defense case involving Pima County resident David Garcia.

But in 2009, the Legislature passed SB 1449, a separate piece of legislation that made the original law, SB 1145, retroactive. Wednesday’s ruling upheld the Legislature’s power to apply that law to Montes’ case despite its ruling in State v. Garcia.

“Nothing prohibited the Legislature from making SB 1145 retroactive,” the justices’ decision read. “Thus, the Legislature’s later enactment of SB 1449 did not ‘overrule’ Garcia.”

Montes is accused of the Sept. 11, 2005, shooting death of Benjamin Cota, 19. Cota and several others reportedly approached Montes, who was in his car, and attempted to open the driver-side door. Montes then shot Cota and wounded two of his companions, according to court documents.

Prosecutors charged Montes with one count of first-degree murder, two counts of attempted first-degree murder and two counts of aggravated assault with a deadly weapon. Montes claimed self-defense, saying he had feared for his life after Cota approached his car in a threatening way with a 40-ounce beer bottle.

A jury rejected Montes’ defense and found him guilty of second-degree murder and both counts of aggravated assault. He was sentenced to multiple prison terms totaling 23 years.

But confusion over the 2006 law led Pima County public defender Robert J. Hirsh, then Montes’ attorney, to argue that the change entitled Montes to a new trial.

An appeals court affirmed the lower court’s conviction of Montes on Sept. 18, 2009, just weeks before the Legislature issued a statement of intent saying the self-defense law was “retroactively applicable to all cases in which the defendant did not plead guilty or no contest and that were pending … on April 24, 2006.”

Montes used the statement to justify a reconsideration of his case, which the appeals court denied on the basis that the Arizona Constitution and previous rulings “[make] it clear that the Legislature cannot nullify a Supreme Court decision by ‘clarifying’ the law.”

The Supreme Court, however, found the action constitutional by interpreting the law as a separate grant of retroactive applicability rather than a reversal of the court’s previous decision.