The question of whether Honolulu can pursue a third trial against Christopher Deedy, a federal agent from the mainland who fatally shot local resident Kollin Elderts in 2011, is now in the hands of the Hawaii Supreme Court.

Deedy’s attorney, Thomas Otake, argued Thursday in a hearing before the state’s highest court  that a third trial would constitute double jeopardy.

Assigned to attend the Asia-Pacific Economic Cooperation conference, Deedy had only been in Honolulu for a few hours when he had the deadly encounter with Elderts, 23, at a Waikiki McDonald’s restaurant at about 2:45 a.m. on Nov. 5, 2011.

Deedy is white. Elderts was Hawaiian.

Deedy was indicted for second-degree murder, but his first trial ended in a hung jury. The jury was instructed not to consider lesser charges.

In his second trial in 2014, Deedy was acquitted of second-degree murder and the jury was hung on the lesser charges of reckless manslaughter and assault. The Circuit Court ruled he could be tried for reckless manslaughter again, which carries a maximum 20-year prison sentence. Deedy’s lawyers appealed that decision.

Otake emphasized Thursday that in Deedy’s first trial, the court ruled there wasn’t enough evidence to try the federal agent on lesser charges and the prosecutor acknowledged that in statements to the media.

“The court found there wasn’t any evidence,” Otake said. “That’s what double jeopardy’s about. They don’t get another shot at this.”

Justices Michael Wilson and Paula Nakayama posed skeptical questions to attorneys on both sides, while Justice Richard Pollack was openly critical of Otake’s arguments, listing different situations that comprise double jeopardy.

“That didn’t happen here,” Pollack said.

“The state has said time and time again that they had no regrets about manslaughter not being an option,” Otake replied. “To allow them to now pursue it at this place in the litigation will be wrong.”

Deedy has claimed he was defending himself and others from Elderts when the altercation occurred.

Donn Fudo, Honolulu deputy prosecuting attorney, described Deedy as a “drunk tourist” who “instigated a physical confrontation.”

He said that Otake’s arguments were incorrect and said the case is about justice.

“I don’t know how it will ultimately turn out but the only way justice has the ability to bend forward is to honor the judge’s decision in the lower court (to allow the trial to move forward),” Fudo said.

Otake agreed the case is about justice and said it comes down to balancing the state’s interest in pursuing the charge and fairness to Deedy.

“It’s not about getting a conviction at all costs or winning at all costs,” Otake said.

Broader Significance

The courtroom was half-empty Thursday, and neither Deedy nor the Elderts family was present.

The lack of attendance was in stark contrast to Deedy’s first trial, which attracted significant public interest and media attention.

Elderts’ death sparked debates about racial discrimination and tapped into deeper frustrations about the U.S. annexation of Hawaii and militarization.

Kalamaoka’aina Niheu, who acts as a spokeswoman for the Elderts family, said after the hearing that the family couldn’t attend because “their lives have already been financially and emotionally destroyed.”

She spoke to reporters flanked by members of the Justice for Kollin Elderts Coalition, some of whom wore T-shirts with his name.

Deedy is still employed at the State Department.

“Whether it be Native Americans at Standing Rock, whether it be Muslims at the airport, whether it be kanaka maoli here in our lands today, we need to take a stand in regards to defending ourselves, protecting ourselves,” Niheu said. “It’s clear that many times law enforcement is incapable of and unwilling to do so.”