Prior to the trial, SB 1145 was proposed and was argued before the House and Senate Judiciary Committees.  The issue debated was whether to restore the burden of proof to the state (burden beyond a reasonable doubt).  In 1997, the legislature had shifted the burden to the defendant by a preponderance of evidence.  Arizona was one of only two states in the United States who had adopted such a view on self defense.  The attorneys for Fish told the trial judge, prior to the trial, that the burden of proof would be shifted to the defense and requested that Judge Moran not give preliminary instructions to the jury that self defense was a burden on the defendant.  judge Mark Moran refused this request saying he would deal with the possibility of a change later if it was needed.

SB1145  was signed into law on April 24 by the Governor with an emergency clause causing it to go into effect immediately.  After the enactment, the State continued to oppose shifting the burden to the state, arguing that the law did not apply to Hal Fish because the “crime” was committed prior to the signing of the law, and that the change in the law was substantive and not procedural.  The defense argued that it was procedural, and that the intent of the legislature adding the emergency clause was so that the law would apply to Fish.  Judge Moran ruled that the law should not apply to benefit Fish and therefore the instructions to the jury would be according to the old law.

The defense filed a petition for special action with Division 1 of the Court of Appeals requesting that the jury be given the new law as the standard of proof for judging the evidence on self defense.  The trial proceeded through the completion of the evidence and then was placed on hold for approximately 2 weeks awaiting the ruling of the Court of Appeals.  Division One declined jurisdiction.  One of the three judges dissented, maintaining that Harold Fish should receive the benefit of the new law.   A decision was made to go forward with the trial rather than seek a new stay with the Arizona Supreme Court.

The trial proceeded with the jury receiving instructions under the 1997 law.  Fish was convicted.  The jury foreman  later told one of the defense attorneys that the jury would not have convicted Fish under the new law, but had to follow the directions given by the judge. 

While waiting for the sentencing,  the defense asked the Supreme Court to consolidate the Fish case with the Mendez case to expedite the ruling on the case regarding SB1145.  The Mendez case was to be ruled on at the end of September (9-26-06).  The Arizona Supreme Court granted expedited review, then decided on September 26, 2006 to deny Harold Fish's petition for review.

On September 5^th the Division 2 Court of Appeals, who had accepted jurisdiction on the new self defense law in another case, ruled in favor of the defendant in that case and “granted relief” to David Garcia.  Other judges in Maricopa County have ruled that criminal defendants are entitled to the new self defense instruction, even though their alleged crimes were committed prior to April 24, 2006.

In the Garcia case, decided by Division Two, the court cited legislative hearings on Harold Fish finding that the legislature clearly intended the law to take immediate effect and to apply to existing cases that were pending trial. . They also stated in paragraph 17 “the critical inquiry in retroactivity analysis is not whether a statute affects a substantive right but whether a statute affects a vested right”.  In paragraph 21 the Court says “we believe the legislature intended the stature to apply to proceedings, including trials and grand jury hearings that had not yet taken place when the statue became effective.  The state has identified no vested right it has that would be abridged by applying to Garcia’s pending case.”  In the conclusion of the ruling they said that the new in their opinion “applies to defendants Like Garcia who allegedly committed offenses before the effective date of the amendment but who have not yet been tried.” 

The Fish defense then filed a MOTION TO VACATE UNLAWFUL SENTENCE; AND ORDER. This motion is based on the Division 2 ruling.  The State responded that Fish had already started his trial on April 11^th 2006, and that the law was not signed until April 24^th 2006. 

We then received the Supreme Courts ruling to decline our special action request to them regarding our case on September 26^th. 

Our reply to the States response on the motion to vacate the sentence was to request the judge to wait on his ruling until the Supreme Court ruled on the Garcia case in October.

On October 23^rd the Supreme Court is to rule on whether or not to “de-publish” the Division 2 ruling in the Garcia case.  If they de-publish the ruling other defense lawyers, including Fish’s, will not be able to quote the decision while arguing their request for the application of the new law in their cases.  If they deny review of the Division Two case, then Fish's attorney's believe that he must be released.  The Arizona Supreme Court might also grant review, and write their own decision on whether the law is procedural or substantive.