Agent’s testimony will be key in retrial

City prosecutors will have a major advantage in the retrial of State Department special agent Christopher Deedy because they now know his version of the 2011 fatal shooting at a Waikiki McDonald’s restaurant.

But if the second jury in the retrial is unable to reach a unanimous verdict, Deedy’s defense lawyers will be in a better position to seek a dismissal of the murder charge, legal experts say.

After declaring a mistrial last week in one of Hawaii’s most publicized court proceedings, Circuit Judge Karen Ahn will meet with lawyers Sept. 13 to set the date for a retrial.

The case has drawn conflicting opinions in the community over whether the agent was justified in shooting Kailua resident Kollin Elderts.

The five-week trial also presented a conflict for jurors.

Early in the deliberations, the eight men and four women were split 6-6, and the panel ended up deadlocked at 8-4 in favor of acquittal, the jury foreman said afterward.

"It seems that this was a case that polarized the public and there’s no reason to think that it did not polarize the individuals who sat through weeks of trial," said Todd Eddins, a former deputy public defender.

Deedy, 29, of Arlington, Va., who was here to provide security for the Asia-Pacific Economic Cooperation conference, did not dispute that he shot Elderts, but testified the 23-year-old Kailua man was punching him in the face and grabbing for the agent’s gun in the Nov. 5, 2011, shooting at the McDonald’s on Kuhio Avenue.

During the trial, city prosecutors told the jury the federal agent was a "bully with a badge" who had been drinking while armed with his 9mm Glock, threatened Elderts and escalated the confrontation.

Deedy said he was only trying to tell Elderts to leave a customer alone and Elderts became more enraged after the agent identified himself as a law enforcement officer.

Deedy spent more than two days on the witness stand, disclosing for the first time under oath his version of the shooting.

Under court rules and the law, the defense is not obligated to tell the prosecution what the defendant will say on the stand or even if the defendant will testify.

"The playing field is leveled," Prosecutor Keith Kaneshiro said Friday, now that prosecutors know Deedy’s narrative of that early morning.

State Public Defender Jack Tonaki said it’s the biggest advantage either side will have in the retrial.

"Prior to the second trial, the prosecution will go over (Deedy’s) entire statement with a fine-tooth comb and cross-check everything he said with the evidence in the case," Tonaki said.

He said prosecutors will look for any inconsistencies or falsehoods.

But it’s not clear whether that advantage will translate into a murder conviction — especially if the second jury, like the first, does not have the option of returning a manslaughter verdict.

Without the option, the deadlock last week was foreseen by some legal observers. In the second trial the chances for another hung jury are "highly probable," Eddins said.

Under Hawaii Supreme Court rulings, the judge has the obligation to decide whether there’s a "rational basis" to give the jury the option of returning a verdict on the lesser offense of manslaughter.

In her ruling, Ahn noted that neither the defense nor prosecution sought that option. She said she didn’t think there was any evidence to support the reckless manslaughter offense.

Kaneshiro said the prosecution will not seek the manslaughter option in the retrial.

"We’re going to maintain that there’s no rational basis in the evidence supporting manslaughter, according to the case law of the Hawaii Supreme Court," he said.

Legal observers cannot recall the Hawaii Supreme Court ever dismissing a murder charge after a mistrial based on a hung jury.

The key Hawaii Supreme Court ruling on the issue dismissed a manslaughter charge after two hung juries, but the court did not say how many times a defendant can be retried.

On that point, Kaneshiro said he once obtained a murder conviction in a third trial after two hung juries.

But he acknowledged that the likelihood of a dismissal would increase after a second hung jury.

"The longer you take, the more hung juries you get, chances are increased that it’s going to be dismissed," he said.

ONE LEFTOVER from the first trial that still hangs over the head of Deedy’s lead attorney, Brook Hart, is Ahn’s threat to issue him a contempt of court citation.

Ahn admonished the veteran criminal defense lawyer during pretrial hearings and during the trial.

"Bring your checkbook," she told Hart during one pretrial hearing when cautioning him not to go beyond her restrictions.

During the trial, Ahn found him in contempt of court and fined him $250 for asking a question about whether a woman on the McDonald’s surveillance video had blood on her hands, even though Hart said he had a basis for asking the question.

It was the first time Hart had been found in contempt for asking a question in his more than 44 years of practicing law in Hawaii.

Ahn withdrew the contempt citation before the day was over.

Also in the trial, Ahn threatened to hold Hart in contempt when he questioned another witness about a detail of his employment. She indicated she had told him he couldn’t ask the question, and said she would be reviewing the transcript.

The judiciary did not respond Friday to a request asking for the status of the contempt threat.

"I decline to comment on the conduct of the trial while a retrial is pending," Hart said last week.

Kaneshiro said attorneys should be held accountable when they violate court orders. But Tonaki said it’s "shocking" Hart would be found in contempt of court.

"He has a stellar reputation among the criminal defense community and I believe among the judiciary," Tonaki said.

Hart has been an instructor at the University of Hawaii law school and "taught a generation of attorneys on how to try cases ethically and properly," including teaching them how to question witnesses, Tonaki said. He called Hart "the dean of criminal defense attorneys."