Judge K L. Mclff Denies Fisher's Bid For Release While Appeal Is Pending PANGUITCH Attorney Kent Winward's attempts to convince con-vince Judge K.L. Mclff that his client, cli-ent, North Star defendant Craig Fisher, should be released from jail pending outcome of his appeal failed. Fisher who has been in Garfield Gar-field County Jail since Dec. 27, after af-ter his conviction in Richfield on a third degree felony charge, was present pre-sent in court. Assistant Attorney General Craig Barlow who had assisted as-sisted in prosecuting the case represented repre-sented the state. Fisher was the only one to stand trial of the original nine charged in the death of 16-year-old Aaron Bacon Ba-con in March 1996 while enrolled at North Star. The wilderness program pro-gram for troubled youth operated out of Escalante. Charges were reduced re-duced against the others when they entered plea agreements, just before the start of the scheduled trial, but Fisher decided to fight. Winward had earlier submitted his formal petition for Fisher's release re-lease and Barlow had submitted his written response objecting to it, both of which the judge had read. Winwards had to prove to the judge's satisfaction that his client was not a flight risk, that he would be no threat to the community and that there is a good chance of his appeal succeeding. Barlow was willing to agree that Fisher would not be a threat to the community but unwilling to agree that Fisher was unlikely to flee until un-til hearing Winward's argument when he agreed with Winward on the second point of proof. Addressing the likelihood of the potential success of his appeal, Winward said that while several points in his appeal were covered by prosecution motions that were denied before Fisher's conviction, one issue in his appeal is addressed for the first time. Winward's appeal contends that prior to jury deliberations, he spe- cifically requested an instruction be given the jury that removed from consideration by the jury those days that Fisher was absent from North Star's program and unable to contribute con-tribute to the crime of which the jury convicted him. Winward reminded the judge that while discussing jury instructions with both defense and prosecution attorneys, the judge had denied Winward's request that the jury be directed not to include the days Fisher was absent from North Star when deliberating his guilt or innocence. inno-cence. Winward now claims that refusal caused the jury to convict his client of a committing a crime when he was not present at all times to commit it in the manner in which the jury ultimately decided he did. Specifically, Winward argued that Assistant Attorney General Rob Parrish's chart shown to the jury in his closing statement did not exclude days Fisher was absent as Aaron Bacon's counselor, leaving leav-ing the jury to deliberate with the thought they should consider all days specified in the chart. That's where, he contends, the state failed. Winward said that Rob Parrish in his closing statement, used a chart which depicted to the jury the cumulative days Aaron Bacon Ba-con was purportedly deprived of food (Mar. 11 through Mar. 31, 1994) a method , the state contended, con-tended, in which Bacon was abused or neglected. And Winward stated, "these methods are not substantial, they are not legally sufficient to support a conviction." Another important point, Winward Win-ward contended, was that the court "had no method to ensure that the jury agreed on a legally sufficient method of the alleged abuse or neglect." ne-glect." Referring to the chart. Winward (See Judge Mclff Says No To Fisher Release On Page 5A) Judge KLMcIff SaysNoTo Fisher Release From Front Page said that it included erroneous information. in-formation. He said the first two' ' days of the program wherein the state contended Aaron Bacon went without food were "state sanctioned" sanc-tioned" or approved fasting days for wilderness programs. There was another day, Winward said, Parrish included in the chart wherein Aaron Bacon went without food, "a day Craig Fisher was not even present, was not there, was on days off." Winward said "that cannot can-not be substantial evidence to support sup-port a conviction. It is like trying someone in abstentia. How can you convict him when he wasn't even there?" Yet, Winward contended, con-tended, it was argued to the jury. Winward reiterated, "the time frame argued to the jury to convict Mr. Fisher was 21 days. One of the methods that the state argued was deprivation of food. Looking at Mar. 1 1 through Mar. 3 1 , there are more than three days of that 21-day 21-day time period that should have been taken out. Barlow challenged Winward's argument by saying that a jury is instructed to disregard what attorneys attor-neys say and consider only evidence and testimony so that anything Parrish Par-rish may have said in his closing argument was not to have been considered by the jury He said Parrish did not ask the jury to consider the days Aaron went without food when Fisher was gone, a fact, he said, the prosecution prosecu-tion team had discussed together and agreed to carefully avoid. He said the jury was made aware of the two-day fast expected of new progam participants and would therefore be aware of any consequences conse-quences it might produce. He argued that Fisher was made aware by other supervisors of what took place when he was gone. "We don't know how the jury assessed those three days that Fisher was gone," Barlow said. He said that even if an appeals court decided that it was an error, it would be perceived as a harmless error. er-ror. Winward replied that the prosecution prose-cution had focused on a "continuation of days" theory in seeking a conviction and insisted Jl j jjj Referees are sometimes die least appreciated of all at the basketball games, but there would be no games without their special skills. that the jury look at all of the days. "He Fisher wasn't there," Winward claimed, "he shouldn't be responsible. "We're talking about criminal law. And then they the prosecution prosecu-tion complain" that "I had an opportunity op-portunity to argue it to the jury. "That is not my job to argue the law to the jury. It is not my job to argue to the jury what they should and shouldn't consider out of the evidence. That is the court's responsibility re-sponsibility through its instructions instruc-tions to instruct the jury..." "Mr. Barlow in his argument said something. He said,' it is difficult, dif-ficult, with precision, to say exactly ex-actly what constituted abuse and neglect.' And that's an interesting argument, coming from the state, because, through this whole thing, they've been arguing for broad definitions defi-nitions of the statute. And they've been granted them. I mean, it's been all their argument. But right now, you open up the annotated version under abuse and neglect of a disabled child and there's nothing there," Winward concluded. But the judge wasn't convinced by Winward's reasoning. "I find that Mr. Fisher and his fellow supervisors su-pervisors had under their care, custody cus-tody and control, the young people who were in their program. "I also find that the evidence supported that Aaron Bacon was abused and neglected by his caretakers caretak-ers including Mr. Fisher. And there was significant evidence that he was deprived of food arid shelter and protection pro-tection from the elements on several sev-eral occasions and that such conduct jeopardized his health and well being. be-ing. "I allowed freely both sides to point out the evidence of what Mr. Fisher did. When he was absent I allowed that to be argued. I'm not satisfied that it compromised the jury," Mclff said, and denied Winward's Win-ward's request for Fisher to be released re-leased from jail pending the outcome out-come of his appeal.