Federal appeals court weighs if Deedy can be tried 3rd time in death of Elderts

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An appeals court could soon decide whether a federal agent can be tried a third time for killing a local man in Waikiki nearly 8 years ago.

The Honolulu Department of the Prosecuting Attorney tells Always Investigating they still intend to hold Christopher Deedy accountable for killing Kollin Elderts, despite a hung jury, an acquittal and a deadlock on a variety of charges in two past trials.

A federal judge in Hawaii has already said no to third chance, but now it’s in the 9th Circuit Court of Appeals’ hands.

On Nov. 5, 2011, U.S. State Department special agent Christopher Deedy, in town for the APEC event, and Hawaii resident Kollin Elderts got into an altercation at a McDonald’s in Waikiki. It turned fatal when Deedy fired his gun at Elderts. Deedy called it self defense. Honolulu prosecutors called it murder.

Deedy’s trial ended in a hung jury mistrial in August 2013.

A jury acquitted him of murder in a 2014 do-over, but deadlocked on manslaughter and assault.

Prosecutors vowed to take Deedy on again. His defense took double-jeopardy claims to the Hawaii Supreme Court, which sided with the prosecution by ruling in December 2017 that a third trial wouldn’t violate double-jeopardy rights if they went after manslaughter and not murder.

Then the federal U.S. District Court in Hawaii reversed that position last fall, barring a third trial on grounds that manslaughter, too, would be double jeopardy. The federal judge said that back in the original murder trial, the judge should have given the jury instructions to consider manslaughter, too, but didn’t, and that amounted to an acquittal.

Honolulu prosecutor’s appealed that federal ruling, and this week a U.S. 9th Circuit Court of Appeals panel heard oral arguments from prosecutors and Deedy’s defense.  See the full oral argument session here.

Judge Paul Watford asked Deed’s defense attorney: “So your view is that as to any lesser included offenses are subsumed within the greater charge if the state does not propose jury instructions on them they have been deemed to abandon them?”

“I think under this record,” defense attorney Thomas Otake responded, “when you can pursue it and you don’t, and you don’t mention it at all in your opening and you didn’t put on any evidence, and it’s not your theory, when you don’t submit the instruction, when you object to the instruction being given, then that’s abandonment.”

Watford questioned a Honolulu deputy prosecutor, too: “The second trial, he is acquitted of the murder charge…”

“And they hung on everything else,” Honolulu Deputy Prosecuting Attorney Donn Fudo said.

“Right, but at that point, why are you permitted to even pursue the lesser-includeds given what you had done at the first trial?” Watford asked.

“Because in the first trial there was no jeopardy terminating event,” Fudo said. “That’s the key issue: a jeopardy terminating event.”

Each side had just 10 minutes a piece to make their case to the panel. Now they wait for an opinion, whether the court will uphold the federal ruling against a third trial, or reverse that prior ruling, opening the door for a third try.

The prosecutor’s office tells Always Investigating they intend to take Deedy to court again if allowed, stating: “This case involves the unjustified killing of Kollin Elderts, a young Hawaii man. It is our moral and ethical obligation to pursue all legal remedies.”

We reached out to Elderts’ family and Deedy’s attorney but haven’t heard back. We’ll keep track and let you know when the 9th Circuit decision comes down.

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