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The Harold Fish Case

Discussion in 'Self Defense and Handgun Carry' started by gerhard1, May 23, 2018.

  1. gerhard1

    gerhard1 Sharpshooter

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  2. NikatKimber

    NikatKimber Moderator Staff Member

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    Interesting read.

    I find it interesting the defense didn't seem to say anything about the gun or ammo; despite the prosecution going after that.
     
  3. tRidiot

    tRidiot Sharpshooter

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    Holy smokes. That's terrifying.

    The prosecution would prefer you let someone attack you and beat you senseless rather than you defend yourself. Go for a walk on a nature trail, encounter some nutcase in the woods (I've met lots of these folks, some of them are way WAY out there, many unhinged), defend yourself and end up in prison. Sad state of affairs. I guess, those kids could have a father who was killed on that trail, no explanation, no answers - instead they get to answer questions about why he is in prison for the rest of their lives.
     
  4. Dave70968

    Dave70968 Sharpshooter

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    Based only on the story, it sounds like his lawyer wasn't familiar with firearms or self-defense cases. The super-powerful 10mm and hollowpoints could easily have been mitigated, and someone familiar with self-defense cases would have seen the spin the prosecutor was (successfully) trying to apply and turned it into a neutral at least, if not a positive. Hollowpoints are safer because they reduce penetration, and 10mm because that's bear country, so he was acting responsibly toward what he believed was his more likely threat--he didn't go out looking to shoot a person, he was concerned that he might have to shoot something far more physically dangerous.

    I hate to be an armchair quarterback, especially when all I have to go on is the media portrayal, but I definitely got the sense that the defense lawyer was a bit out of his element here.
     
  5. gerhard1

    gerhard1 Sharpshooter

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    Counselor, I'd tend to agree with your evaluation.

    Would you mind if I did a C&P of your post to another forum? It might be helpful to them.
     
  6. NikatKimber

    NikatKimber Moderator Staff Member

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    That's what I was thinking. On one hand they argued he carried more than the police (10mm vs 9mm/.40) being bad, on the other they argued carrying the same (hollow points) is bad.
     
  7. NikatKimber

    NikatKimber Moderator Staff Member

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    If you do, would you put a link back here to the actual post if that's not against any rules there.
     
  8. gerhard1

    gerhard1 Sharpshooter

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    Absolutely. I think the people in Kansas should be exposed to some good old-fashioned Okie wisdom.

    But I won't do it if Dave doesn't want me to.
     
  9. Shadowrider

    Shadowrider Sharpshooter

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    Gotta real question for you (and anyone else involved in the legal profession). It sure has the appearance of the DA knowing that this case was a "stretch" and still elected to prosecute it. I think he just went for it because he thought he could win with no regard to achieving true justice. Maybe he's truly ignorant of all things gun and a huge lib, IDK. But in this scenario, where is the line on him being scolded by the court and/or the BAR? Seems a little of that "self policing" by his peers are in order.
     
  10. Dave70968

    Dave70968 Sharpshooter

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    By all means. I was only going to ask that you link back here, but it looks like NK has already done that.
    Highly unlikely. Even based on the news story, I can see that there's enough to raise a question. With no witnesses, there's always a question; even with witnesses, it's not a sure thing. Anything short of a video and I'm going to cock an eyebrow.

    If you're interested, Oklahoma's ethics rules can be found in Title 5; most states will be similar. You're looking specifically for Appendix 3-A, Oklahoma Rules of Professional Conduct (just over halfway down). The rule most on-point is Rule 3.1:

    Rule 3.1. Meritorious Claims and Contentions


    A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.


    Comment

    [1] The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.


    [2] The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of the clients’ cases and the applicable law and determine that they can make good faith arguments in support of their client’s positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.


    [3] The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.​


    Rule 3.8 would also be relevant specifically to the prosecutor:

    RULE 3.8 SPECIAL RESPONSIBILITIES OF A PROSECUTOR


    The prosecutor in a criminal case shall:


    (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;


    (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;


    (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;


    (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;


    (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:


    (1) the information sought is not protected from disclosure by any applicable privilege;


    (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and


    (3) there is no other feasible alternative to obtain the information;​


    (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule;


    (g) The lawyer upon whom a subpoena is served shall be afforded a reasonable time to file a motion to quash compulsory process of his/her attendance. Whenever a subpoena is issued for a lawyer who then moves to quash it by invoking attorney/client privilege, the prosecutor may not press further in any proceeding for the subpoenaed lawyer's appearance as a witness until an adversary in camera hearing has resulted in a judicial ruling which resolves all the challenges advanced in the lawyer's motion to quash.


    (h) When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall within a reasonable time:


    (1) disclose that evidence to an appropriate court and prosecutorial authority in the jurisdiction where the conviction occurred, and


    (2) if the judgment of conviction was entered by a court in which the prosecutor exercises prosecutorial authority,


    (i) unless a court authorizes delay, make reasonable efforts to disclose that evidence to the defendant's attorney or if the defendant is not represented by counsel to the defendant, and


    (ii) if the defendant is not represented by counsel, move the court in which the defendant was convicted to appoint counsel to assist the defendant concerning the evidence, and


    (iii) request an appropriate authority to investigate whether the defendant was convicted of an offense that the defendant did not commit.​


    (i) When a prosecutor learns of clear and convincing evidence establishing that a defendant was convicted in a court in which the prosecutor exercises prosecutorial authority of an offense that the defendant did not commit, the prosecutor shall promptly notify the appropriate court and make reasonable efforts to notify the defendant's counsel and the defendant.


    (j) A prosecutor's judgment, made in good faith, that the new evidence is not of such nature as to trigger the obligations of sections (h) and (i) of this rule, though subsequently determined to have been erroneous, does not constitute a violation of this rule.​

    From what I've read, I don't see misconduct. I see multiple competing interpretations of limited data that raise a genuine question of fact as to the events in question.

    (Oh, and since nobody has asked, the deceased's psych records were properly excluded. The question in self-defense cases is whether the accused reasonably feared for his life; if he didn't know about the deceased's psychology, it couldn't have been a factor in the shooter's judgment. The bit about "general" descriptions of character and behavior were properly admitted, though. It's a fine--and subtle--line.)
     
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