Five state Supreme Court justices heard oral arguments Thursday on whether to allow a third trial of Christopher Deedy, who as an off-duty federal agent shot and killed Kollin Elderts, a 23-year-old Kailua man, at a McDonald’s in Waikiki on Nov. 5, 2011.

Deedy’s two previous Circuit Court trials in Honolulu ended in mistrials. The first, in 2013, on a second-degree murder charge, ended in a hung jury. During the retrial in 2014, the jury acquitted Deedy of murder but was deadlocked on a charge of manslaughter. The court ruled the state could retry him on the manslaughter charge.

Deedy is appealing that ruling to the high court in part on the basis of double-jeopardy protection.

Three justices questioned Deedy’s lawyer, Thomas Otake, on his understanding of double jeopardy, and one said his understanding does not meet the criteria in this case.

Otake said the prosecutor failed to convict on murder, so wants to retry the manslaughter charge with different evidence. “Now you’re going to produce different evidence,” he said. “That’s exactly what double jeopardy is supposed to prevent.”

Justice Richard Pollack said, “There’s no definition of double jeopardy that encompasses that theory.”

He said double jeopardy “is second prosecution for the same offense after acquittal, second prosecution for the same offense after conviction, and multiple punishment for the same offense. What has occurred here doesn’t follow these three criteria.”

City Deputy Prosecutor Donn Fudo, addressing the justices, said Otake was “in the threat of perjury” in saying he previously made the claim of double jeopardy. “Why isn’t that motion for double jeopardy protection brought before the second trial?” he asked. “If you have a legitimate double-jeopardy claim, bring it before the subsequent prosecution or you waive it. … They made it 4-1/2 months afterwards.

“Double jeopardy is waivable,” he said.

Otake said he did attempt to stop the second trial based on a double-jeopardy objection. “We did. We absolutely did,” Otake said.

In 2011 Deedy, then 27, a federal State Department agent from Arlington, Va., was on his first day in Hawaii for an assignment to assist with security for the Asia-Pacific Economic Cooperation summit of world leaders. Deedy was off-duty and armed with a 9 mm semi-automatic handgun when he went up to Elderts’ table at the McDonald’s on Kuhio Avenue and intervened because he perceived Elderts was threatening a customer.

“The family has always been very clear that manslaughter should have been the original charge, not because they don’t believe it’s murder … but because they believe it’s almost impossible to prosecute law enforcement,” said Kalama o ka Aina Nihieu, a spokeswoman for the family and coordinator of a group called Justice for Kollin Elderts.

“A federal agent isn’t like anybody else,” she said. “If they are given a semi-automatic weapon and become a drunken tourist on the town and then instigate a fight and murder one of our kanaka maoli youth, this isn’t the average type of situation.”

She said family members have suffered financially, spiritually and mentally from the trauma of two trials and could not bear to relive his killing by attending the hearing Thursday. Deedy also did not attend the hearing.

Fudo told the high court that according to witness testimony, Deedy appeared to be “a drunk tourist in a night of craziness, goading Elderts, ‘I’m going to shoot you in the f—-ing face if you’re acting like this.’”

Otake also said that because the prosecutors did not pursue a manslaughter charge in the previous two trials, they cannot pursue it now.

Justice Sabrina McKenna said, “That’s not true, is it, counsel?” adding that in the second trial the state did include manslaughter and assault charges. She added that Deputy Prosecutor Janice Futa, lead prosecutor in the first two trials, never said Deedy was not guilty of manslaughter.

Otake also raised the theory of acquittal, saying that Judge Karen Ahn, by not including jury instructions regarding the manslaughter charge, in effect acquitted his client of manslaughter.

Pollack asked, “So in your view, every single time a judge decides not to give an instruction, that that is equivalent to a judgment of acquittal of the offense? That’s the theory you’re asking us to find.”