Mon, March 30

Governor weighs veto on self-defense law

PHOENIX -- Gov. Janet Napolitano is weighing whether to veto legislation that would help one convicted murderer get a new trial and aid another person awaiting trial in a shooting death.

Napolitano said Wednesday she is reviewing newly approved legislation which spells out that a change in laws governing self defense that took effect last April apply to all cases which had not yet gone to trial.

She also is being urged by Pima County Attorney Barbara LaWall to veto the measure. LaWall said it would have "disastrous consequences for our communities, our law enforcement efforts, the lives of victims, and the public treasury.''

Gubernatorial staffers already have drafted a veto message, listing concerns with the proposal. But Napolitano press aide Jeanine L'Ecuyer said that doesn't mean the governor already has made up her mind.

A veto would be legal bad news for David Rene Garcia, awaiting trial on a charge of murder in Tucson, who wants his case heard under the new law -- a law that would make conviction more difficult.

It also would be a setback for Harold Fish, already convicted of the murder of a hiker in Coconino County. Fish was tried under the old law; this legislation would allow him to demand a new trial, this time under the revised standard which might make it easier for him to be acquitted.

Prior to last April, someone who claimed self defense had to prove to a jury there was no other choice but to use force. The new law instead says once someone claims self defense, it is then up to prosecutors to prove otherwise.

The Arizona Supreme Court ruled last month that the change affected only those crimes committed after the measure was signed into law by Gov. Janet Napolitano. The court said Garcia, who said he shot Alexis Samaniego in self defense, would have to be tried under the old law.

That decision also dims the chances that Fish would get a new trial.

The legislation on Napolitano's desk would spell out that lawmakers want -- and always intended -- the 2006 law to apply to both those cases.

But Napolitano said she believes making that change could open the door wider than that. That's because others whose cases were still pending after April 24, 2006 also could now claim they, too, are entitled to the benefit of the new law.

That draft veto message said that signing the change would have "unexpected adverse consequences,'' with defendants in cases already over and done saying they deserve a new trial under the revised law. And that even could apply to those who chose to plead guilty based on their understanding of the law at that time.

The draft veto suggests that if lawmakers want to help Garcia, Fish -- and maybe others -- a better solution might be to empower the state Board of Executive Clemency to review guilty pleas and guilty verdicts that occurred subsequent to April 24, with the idea they could look at the facts and determine whether to allow someone who had been convicted to be released.

LaWall, whose office is prosecuting Garcia, said hundreds of other cases in Pima County alone would be affected, with all guilty verdicts in self-defense cases having to be retried. And she said new trials also would be sought by those who had pleaded guilty who would contend they would not have done so had they been able to go to trial under the terms of the altered law.

She also said new trials would place a new hurdle in the path of "victims that have been waiting for justice for themselves and their loved ones.''

If Napolitano vetoes the measure there are more than enough votes for an override: The measure was approved on a 29-0 vote by the Senate and by a 42-17 margin in the House. But whether Democrats who supported the measure would vote to override their own governor is an open question.

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