Napolitano Vetoes Bill to Make Self-Defense Change Retroactive

Napolitano said county prosecutors advised her that the retroactivity change would have allowed reopening of numerous criminal cases, and she said the time to make the 2006 law retroactive was when it was passed, not a year later.

``Otherwise, too many cases that have proceeded through our overburdened criminal justice system need to be resolved again,'' she wrote in her veto letter.

The 2006 law shifted the burden of proof in cases where people charged with a crime are claiming self-defense.

The 2006 law says prosecutors must prove beyond a reasonable doubt that a self-defense claim was unfounded. Before the law was changed in 2006, defendants had to prove that they acted to protect themselves.

Supporters hoped the law would be included in instructions given to jurors in the trial of Harold Arthur Fish, a retired teacher convicted of second-degree murder in the 2004 shooting death of Grant Kuenzli during a confrontation on a trail near Payson. Fish had claimed self-defense, saying that Kuenzli charged him in a threatening manner after Fish shot a dog that he considered a threat.

A Coconino County Superior Court judge denied a request by Fish to apply the new self-defense law retroactively to his case, and the Arizona Supreme Court on Feb. 9 ruled that the law didn't apply retroactively to cases involving offenses committed before the law took effect on April 24, 2006.

A group representing Arizona prosecutors opposed both the 2006 and 2007 legislation, but the National Rifle Association voiced support for Fish's self-defense claim and backed the legislation each year.

The 2006 law was prompted by Fish's case, but the Supreme Court ruling came in the case of David Garcia, who is charged in Tucson with murder in the 2004 shooting death of Alexis Samaniego. Garcia awaits trial in Pima County Superior Court.

Napolitano's on Friday office released copies of letters in which top prosecutors from Pima, Pinal, Yavapai and Yuma counties urged her to veto the bill.

``Every plea or conviction, to any case where self-defense might have been asserted during the relevant time period, is now subject to challenge,'' Pinal County Attorney Robert Carter Olson wrote.

A. Melvin McDonald Jr., a lawyer who represented Fish during his trial, said the prosecutors' claims were grossly overstated because most criminal cases end with pleas that waive appeal rights.

``I would be surprised if you could get up to eight or 10 cases,'' he said.

Added McDonald: ``Obviously the next step (is) to hopefully for the legislature to override the veto.''

The vetoed bill (SB1302) to make the 2006 change apply retroactively was approved 29-0 by the Senate and 42-17 by the House.

Those margins are above the two-thirds votes needed in each chamber- 20 in the 30-member Senate and 40 in the 60-member House- to override a veto, but Napolitano's position could influence the votes by some lawmakers if an override is attempted.

The bill's sponsor, Republican Sen. Linda Gray of Glendale, did not immediately return calls for comment on the veto and the possibility of an override attempt.

Gray has said lawmakers intended all along that the 2006 change would apply to retroactively to Fish's case. She said there were indications that Fish was treated unfairly, both in the decision to charge him in the first place and on what evidence could be presented during his trial.

The bill was the first from the current legislative session to reach Napolitano's desk, and Napolitano opened her veto letter by saying she regretted that she felt compelled to veto the bill at a time when lawmakers had begun their session with a ``bipartisan and cooperative tone.''

Fish, who entered the state prison system to serve a 10-year sentence, has appealed his conviction to the Arizona Court of Appeals.