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Wed, Oct. 23

Court: Judge right to overturn murder conviction
Man convicted of 2010 murder in Queen Creek is entitled to a new trial

Robert Fischer

Robert Fischer

PHOENIX — A California attorney convicted of a 2010 murder in Queen Creek is entitled to a new trial.

The Arizona Supreme Court on Monday ruled that Maricopa County Superior Court Judge Karen Mullins, who presided over the trial, did not err in overturning the guilty verdict entered by the jury. Mullins said the evidence did not support the jury’s findings.

Justice Robert Brutinel, writing for the unanimous Supreme Court, said trial judges have broad authority to make such a conclusion. And he pointed out that Mullins was not ordering Robert Fischer acquitted but simply requiring prosecutors to prove their case to a different panel.

More significant, the justices rebuffed the state Court of Appeals which in 2015 have overruled Mullins.

According to court records, Robert Fischer, who also is a former police officer, was visiting family in 2010.

Fischer, stepdaughter Belinda and Belinda’s husband, Less, stayed up talking and drinking.

Belinda went to bed around 11:30 p.m. while the other two continued drinking heavily.

Fischer testified he awoke confused the next morning and found a man on the kitchen floor in a pool of blood. He called 911; police found Lee with a single gunshot wound to the head, a handgun in his hand and his thumb on the trigger guard.

Prosecutors charged Fischer with second degree murder, arguing he shot Lee and then manipulated the evidence to make it appear a suicide. A jury found him guilty.

Mullins granted a motion for a new trial.

“There was, quite simply, no physical evidence that the defendant fired the gun that killed Lee,” she wrote. And she said a detective’s opinion that Fischer staged the scene is “not supported by the physical evidence, lacks credibility, and is sheer speculation.”

The Court of Appeals disagreed and reinstated the conviction, reaching its own conclusion that Mullins was wrong. But Brutinel said that decision ignores the role of both the trial judge and the appellate court.

“It is primarily the province of the jury to determine the credibility of witnesses and to find the facts,” Brutinel acknowledged. And he said trial judges “must respect the role of the jury and the integrity of the jury trial system.”

But he said a trial judge can conclude a verdict is “inconsistent” with the evidence and grant a new trial “so as to guard against arbitrary verdicts.”

“We emphasize that the court does not usurp the role of the jury in granting a new trial because the court does not substitute its judgment for that of the jury,” Brutinel wrote. “It only allows the parties a new trial before a different jury.”

By contrast, he said, it is not the job of the appellate court to reweigh the facts and evidence. Instead, Brutinel said, it is only to ensure that a trial judge, in granting a new trial, has acted with “a legal, rather than an arbitrary basis.”

Attorney Stephen Biggs said after Mullins ordered a new trial the state dismissed the case. He said it is now up to prosecutors whether to bring new charges and seek a new trial.

There was no immediate response from the Maricopa County Attorney’s Office.

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