If Christopher Deedy faces a third trial for the fatal shooting of a Kailua man in 2011, prosecutors likely will argue that the evidence proves beyond a reasonable doubt that he is guilty of manslaughter — even though they have repeatedly said the facts don’t support such a finding.

Manslaughter and assault are the only options left after a jury Thursday found the U.S. State Department special agent not guilty of murder in the shooting death of Kollin Elderts in a Waikiki McDonald’s restaurant in November 2011.

In what has been Hawaii’s most publicized murder case in more than a decade, the jury was unable to decide whether Deedy was guilty of lesser crimes connected to the shooting.

That prompted Circuit Judge Karen Ahn to acquit the defendant of second-degree murder but deem him eligible for retrial on manslaughter and assault.

But criminal defense lawyers say prosecutors face an uphill battle in winning the case — or even getting a third trial.

Prosecutor Keith Kaneshiro, in an emailed statement to the Honolulu Star-Advertiser on Friday, said, "We will seek as many trials as the law allows us until justice is achieved."

Taking someone to trial several times for charges arising out of the same incident is not unprecedented, especially on more serious offenses.

Kaneshiro himself said he obtained a murder conviction for a defendant in the 1980s at a third trial, after the first two ended with hung juries.

As for switching to a manslaughter theory, Kaneshiro noted that his office has argued all along that Deedy’s conduct was reckless — a key element for one type of manslaughter.

In the first trial, however, prosecutors sought only a second-degree murder conviction, arguing that the evidence didn’t support a manslaughter one.

Ahn agreed and did not give jurors the manslaughter option. She said neither the defense nor prosecution asked for the lesser offense and that she could not find any evidence of manslaughter — that Deedy recklessly killed Elderts.

Prosecutors and the judge subsequently were criticized by legal observers and the victim’s family for not putting manslaughter on the table.

After the Hawaii Supreme Court over the past year overturned convictions Ahn had handed down in two unrelated cases, saying she should have permitted the jury in those proceedings to consider lesser offenses, the judge allowed two manslaughter and two assault options as well as murder in the second Deedy trial.

Ahn noted there was little evidence in the first trial to support manslaughter based on reckless conduct and that more evidence was presented in the second one to support the charge. The judge also explained that interpretation of the law had changed "rather dramatically" since the first trial.

Given the changed dynamics, Kaneshiro defended his office’s approach to the case.

"In the first trial, the law that applied focused on Deedy’s state of mind at the time he fired his gun, and it was clear that he intended to shoot Kollin Elderts," he said in his email. "This time, the judge included a reckless state of mind and reckless conduct in the events leading to the shooting.

"Those were elements that we raised in both trials. His drinking. The bad decision-making. We’re still alleging reckless conduct, so it is not inconsistent with what we have previously argued."

In deciding whether to hold a new trial, the strongest factors the court likely will consider are whether the interest of justice would be served by conducting a third one, given the costs and other issues, and whether any of the evidence would be materially different, according to Jack Tonaki, the state’s public defender. His office is not involved with the case.

Even though Deedy’s lawyers intend to argue against a third trial, Tonaki said having a third one wouldn’t be unprecedented and he wouldn’t be surprised if the court makes that call.

If this were a case involving a car theft or robbery, a third trial would be unlikely, he added. "But when there’s a death involved, that’s one of the factors that will be taken into consideration," Tonaki said.

The decision on whether Deedy will stand trial again is up to Ahn. She has scheduled a status conference for later this month to hear from both sides.

Under Hawaii law, the state cannot take a defendant to trial repeatedly, using the same evidence, until it gets a guilty verdict. But the law does not specify a limit on the number of trials a defendant can stand for the same act.

Just last month, the Hawaii Intermediate Court of Appeals upheld a decision by another state judge to dismiss a murder charge against a defendant after two trials. The jurors in both trials deadlocked 6-6.

After Thursday’s verdict, Deputy Prosecutor Janice Futa, who handled the case, said a third trial would not be the same as the first two.

"I think the first and second trials were very different in approach and even some facts that came out," she said. "So you can always expect that in trial."

Ken Lawson, a former criminal defense lawyer who teaches at the University of Hawaii law school, said prosecutors have dug themselves into a hole by seeking only a murder conviction while repeatedly arguing that the evidence doesn’t support a manslaughter offense.

Prosecutors have contended that Deedy, who was off duty, was drunk and did not identify himself as a law enforcement officer before starting the fight that ended with Elderts’ death.

Deedy testified that he shot Elderts to protect himself and others.

The Washington, D.C.-based federal agent was in Hono­lulu to provide security for the Asia-Pacific Economic Cooperation meeting.

Lawson, who has 18 years experience as a criminal defense lawyer, questioned whether it would be fair to try Deedy a third time, given what prosecutors have contended all along.

"At some point, it just becomes almost borderline vindictive," he said. "It seems to me they’re not prosecuting in good faith."

Brook Hart, who was Deedy’s lawyer in the first trial and was an adviser to his legal team during the second one, said Hawaii law prevents a defendant from being prosecuted for an alleged offense that arose from the same incident but wasn’t originally charged, particularly if prosecutors failed to get a conviction on the original charge.

"It just doesn’t work that way," Hart said. "They can’t start picking and choosing other things three years later.

"It’s all a matter of fairness and balance."