Coconino County Attorney David Rozema said Thursday his office will not retry convicted trailside shooter Harold Fish.

The decision comes in the wake of a state appellate court decision to throw out Fish's second-degree murder conviction and the governor signing a bill that applies a new self-defense law retroactively to Fish's case.

And, although the appellate case for Fish, 62, a retired Mesa schoolteacher, continues and will likely take months, attorneys for both sides are working on his release from prison.

"It's wonderful news," said Lee Phillips, Fish's co-counsel with John Trebon. "And we very much appreciate the state agreeing to Mr. Fish's immediate release. And we are even more pleased with the decision not to pursue a second trial."

Fish's wife, Debbie, said she's not sure when her husband will be released.

"But the fact that they're not, at this point, intending to retry my husband is absolutely wonderful news," Debbie said.

IMPROPER JURY INSTRUCTIONS

Fish was convicted in June 2006 of second-degree murder in the May 2004 shooting death of Grant Kuenzli on a national forest trail in the southeastern corner of Coconino County. He fired at Kuenzli after he said Kuenzli came at him aggressively after Fish fired a warning shot to keep dogs in Kuenzli's care away from him.

Rozema said that two developments prompted his decision not to retry the case. First, the Arizona Court of Appeals overturned Fish's conviction. Phillips and Trebon had filed a petition with the appellate court on multiple grounds that the trial court made errors. At the end of June, the appellate court decided the jury was not instructed properly as to what constitutes "unlawful physical force." The court also decided the jury should have heard evidence that Kuenzli was known to act violently when confronted about dogs in his care.

Second, Gov. Jan Brewer signed a bill into law Monday that applied retroactively to the Fish case a new law on self-defense. Whereas Fish had to prove at his trial that he acted in self-defense, it is now up to the prosecution to prove at trial that Fish did not act in self-defense.

"In a case like this one, where there is limited physical evidence and no eyewitnesses other than the defendant himself, a prosecution under the new law is not appropriate," Rozema said in a prepared statement.

Rozema continued: "For these reasons and due to the enormous strain that these types of cases place on the limited resources of our office, we have decided in the interests of justice that we will not conduct a second trial in this case."

VICTIM'S SISTER 'NOT THRILLED'

Michael Lessler, chief deputy Coconino County Attorney, phoned Kuenzli's sister, Linda Almeter, several times this week to discuss the legal developments in Fish's case.

"Her view can be accurately stated that she's not thrilled with the idea of Mr. Fish being released, but if it allows the appellate process to work through to conclusion, then she accepts it," Lessler said.

She will accept and respect any decision by the appellate court ultimately, Lessler added.

Phillips said the question now becomes who has authority to release Fish from prison. He and the prosecution will have a hearing with the trial judge, Mark Moran, at Coconino County Superior Court Wednesday to petition Moran for Fish's release.

A possible drawback to Fish's release is if the Attorney General files a petition with the Arizona Supreme Court to review the appellate court's reversal, Phillips said. Such a petition might require Fish to remain in prison until the appellate process has concluded.

Rozema said that because a delay of months could happen while the Arizona Supreme Court makes a decision in the case and determining if the new law is constitutional, he is working with Fish's attorneys for his release from prison.

The only possible way Fish can be sent back to prison if he is released before the appellate process is completed is if the Arizona Supreme Court overturns the appellate court's reversal of the conviction and the newly enacted retroactivity provision of the now 3-year-old new self-defense law is declared unconstitutional.

A spokesperson for the AG's office said no decision has been reached yet on whether to file an appeal with the Supreme Court.

VICTIM IN DEFENSIVE POSITION

At trial, Fish argued that he acted in self-defense when two dogs in the care of Kuenzli rushed at him as he exited the trail. To protect himself, Fish said he pulled a 10 mm handgun and fired a warning shot to keep the dogs away. He said Kuenzli then rushed at him, threatening death or harm.

Fish shot Kuenzli three times in the chest. Two of the wounds were fatal. Kuenzli did not have a weapon in his hands at the time of the shooting, and Fish was unharmed.

The prosecution argued that Fish overreacted and took a man's life when other options were available. Self-defense was not justified, particularly when a forensic report suggested Kuenzli was in a defensive position when the bullets struck him.

The jury agreed with the prosecution and convicted Fish of second-degree murder in June 2006.

As the trial got under way, the Legislature passed a self-defense law that changed the burden of proof from a criminal defendant to prove self-defense to the prosecution to prove that a defendant did not act in self-defense.

Fish argued to Judge Moran that the jury should be instructed to find facts in the case using the new law. Moran ruled that the new law did not apply retroactively to Fish and that the jury would be instructed in the old law.

Twice, the Legislature attempted to craft self-defense bills that would apply retroactively to Fish. Gov. Janet Napolitano vetoed both bills.

Larry Hendricks can be reached at 556-2262 or lhendricks@azdailysun.com.