A Circuit Court jury will resume deliberations this morning after spending all day Monday trying to decide whether State Department special agent Christopher Deedy should be convicted or acquitted of murder.

The jury does not have the option of convicting Deedy on a lesser charge of manslaughter despite a Hawaii Supreme Court decision that makes clear that jurors should be given that choice when there is a "rational basis" for the lesser offense. The ruling said the judge should allow the option regardless of the recommendations by attorneys in the case.

Some legal experts believe the lack of the option may make the Deedy jury’s task harder.

Circuit Judge Karen Ahn ruled last week that she would not instruct jurors of the manslaughter option.

Deedy, 29, of Arlington, Va., who was here for the Asia-Pacific Economic Cooperation conference, is charged with murdering Kollin Elderts, 23, of Kailua, in an early morning shooting Nov. 5, 2011, at the Kuhio Avenue McDonald’s restaurant.

The prosecution maintains that a drunken Deedy shot the unarmed Elderts without justification, while Deedy’s lawyers contend he fired to protect himself from Elderts, who was assaulting him.

If convicted, Deedy faces a mandatory life term with possibility of parole.

In her decision, Ahn said neither the prosecution nor the defense had asked for the manslaughter instruction. She also said she didn’t think "there’s any evidence to support reckless manslaughter."

But in what is considered precedent on the issue, the Hawaii Supreme Court declared in a 2001 decision that trial courts must instruct jurors on a lesser offense when there’s a "rational basis in the evidence for a verdict acquitting the defendant of the offense charged and convicting the defendant of the included offense."

Without the manslaughter option, the Deedy jury is faced with what’s called an "all or nothing" decision: convict or acquit him of murder.

In its ruling, State v. Haa­nio, the high court said the "all or nothing" strategy "forecloses the determination of criminal liability where it may in fact exist."

"Thus, elevating a ‘winner take all’ approach over such a determination is detrimental to the broader interests served by the criminal justice system," the high court said.

The court concluded that the "better rule is that trial courts must instruct juries on all lesser included offenses (as specified by state law), despite any objection by the defense, and even in the absence of a request from the prosecution."

In the opinion written by Associate Justice Simeon Acoba, the high court had refused to overturn a conviction on a lesser robbery offense that was not requested by the defense. Acoba cited the 2001 ruling as recently as Aug. 2 in a footnote in a dissent. He said the "all or nothing" approach "ignores the public interest in reaching a result that best conforms to the facts."

"It’s still the law," said former city Deputy Prosecutor Franklin Don Pacarro, who was involved in prosecuting the case.

Ken Lawson, University of Hawaii law school professor who teaches criminal law and procedure, said the absence of the manslaughter option will make the jury’s task "a lot more difficult."

He said some jurors might feel the shooting was murder, and others might not want to convict him of the charge.

"The manslaughter option gives the jurors the ability to compromise on the verdict," he said.

Jack Tonaki, state public defender, said each case is different and that the Deedy jury might have needed more time in reviewing a manslaughter verdict.

But Tonaki said reaching a unanimous decision among the 12 jurors for either an acquittal or conviction will be difficult.

"Somebody died here," he said. "It’s a question of whether you’re going to let the person go scot-free or convict him of the most serious of charges.

"There’s no compromise here."