HOLBROOK—The jury trial on four sex-related charges against Joseph “Joey” Fish has now been set for June 25. The trial was delayed last month in the Navajo County Superior Court because the court did not have enough jurors.
Fish 19, of Taylor, has had a number of cases in the news. The case going to trial on June 25 started with a grand jury indictment dated November 28, 2107, for two charges of sexual abuse, Class 5 felonies and two counts of kidnapping (restraining someone intending to “inflict a sexual offense”) Class 2 felonies. As previously reported, the charges rise from events in November 2017 in the locker room of Snowflake High School where Fish allegedly held down the underage victim (15 years-old or older) and tried to kiss the victim and reportedly put his hand either over the victim’ s clothed groin area or tried to put his hand inside the victim’s pants.
The parties are gearing up for the fight. In a pretrial ruling, according to court records, the judge allowed the defense to put on what is called character evidence showing that Fish had a character trait of “roughousing/horseplay/goofing off,” and Fish’s defense attorney of record Bruce S. Griffen has disclosed their intent to show the jury that Fish was “not motivated by a sexual interest” and that he is not “sexually aberrant.”
But the prosecutor struck back, arguing that if the defense is allowed to do that as part of its case, then the state has a right to refute it. Prosecutor Robert F. Edwards, in a motion filed last month, asked the court to allow a witness to testify that “on a number of occasions, he saw Fish punch and flick other males in the genitals” and that on a number of occasions, “Fish walked up to random male students at the school, grabbed them, and kissed them.” The witness claims that he also saw that Fish “kissed members of the football team on the neck, causing most of the recipients of his kisses to push him away,” according to Edwards’ motion.
Judge Nielson heard arguments on the prosecutor’s motion on April 23 and ruled that he will consider these issues as they come up in trial. The judge also ordered that 200 potential jurors be summoned.
The prosecutor wants more potential jurors and filed a motion for 200 more to be summoned for Fish’s trial. Edwards recited three past cases in which a paltry number had shown up even though 200 summonses had been issued in those three cases. For example, the prosecutor noted that only 25 out of 200 showed up for Fish’s trial last month — thus the delay. But Nielson said no, that the 200 potential jurors set to be summoned for June 25 should be enough.
In another legal tangle for Fish, the Independent has previously reported that a grand jury indicted him on four charges of aggravated assault (Class 3 felonies) for allegedly rolling rocks down on some young party-goers near Five Mile Draw north of Snowflake in November, 2017. That case was set for a jury trial on June 11, 2018, but about one week before the trial, a grand jury had come up with four new charges against Fish, alleging that because some of the youth in the Five Mile Draw incident were minors, that Fish also committed four counts of child abuse by allegedly rolling rocks down on them.
Prosecutors then asked the court to consolidate the child abuse charges with the aggravated assault charges already set to go to trial merely one week away. The judge said no to consolidation, citing the fact that the defense hadn’t even had the time to look into the grand jury proceedings, a common first step in defending an indictment.
So the jury trial on the four aggravated assault charges started up on July 16, 2018. After four days, thirteen witnesses and forty exhibits, and after the prosecutor had rested the state’s case, the defense asked Judge Ralph Hatch to “direct a verdict” of not guilty under Rule 20 of the Arizona Rules of Criminal Procedure. That rule requires a judge to take the case away from the jury and enter a judgment of not guilty if there is no “substantial evidence to support the charges.” Even after viewing the evidence “in a light most favorable to the state,” as Rule 20 requires, Judge Hatch did indeed direct a verdict of not guilty and that ended the aggravated assault charges.
Hatch didn’t dismiss the case; he entered a judgment of not guilty.
It is said that a judge sits as the “thirteenth juror’” because Rule 20 (not a law, but a procedure promulgated by the Arizona Supreme Court) requires a judge to take that role. It’s a type of check and balance in the unique separation of powers structure of American government.
In any event, the aggravated assault case against Fish is dead as doornail, and not coming back because of the constitutional right against double jeopardy.
However, that state still has the four new child abuse charges based on the same alleged conduct by Fish. In a post-trial hearing, the defense told Judge Nielson that those charges must be dismissed, too, as a violation of double jeopardy. Nielson, in a scholarly analysis of the law, denied the motion. Sure, the parties are the same (The State of Arizona and Fish) but the charges are different, so the law says the state can proceed, he ruled. When the child abuse case might land in court isn’t yet clear.