Christopher Deedy, a U.S. State Department special agent who shot and killed Kollin Elderts on Nov. 5, 2011, can be put on trial for a third time, according to a decision issued Thursday by the Hawaii Supreme Court.

Deedy faced two criminal trials in which the Honolulu Prosecuting Attorney’s Office charged him with murder for the death of Elderts, who is from Kailua.

But both times the trials ended with deadlocked juries.

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Honolulu prosecuting attorney Keith Kaneshiro said he was “gratified” by the ruling, and that he would pursue a third trial of Deedy.

The Supreme Court’s decision was not unanimous. Associate Justice Paula Nakayama issued a dissenting opinion saying that pursing charges for a third time is “patently unfair.”

The case stems from an early morning fight between Deedy and Elderts inside a Waikiki restaurant.

Deedy was in Honolulu as part of a diplomatic security detail for the Asia-Pacific Economic Cooperation conference, while Elderts, a 23-year-old from Kailua, had gone to Waikiki to celebrate his birthday.

Their paths crossed inside a McDonald’s on Kuhio Avenue after a night of bar-hopping with friends. Prosecutors say Deedy was drunk and the one who instigated a fight with Elderts.

Deedy and his attorneys, on the other hand, said he was sticking up for others who were being bullied by Elderts and acting in self-defense once he was attacked.

Deedy was indicted by the Honolulu Prosecuting Attorney’s Office in 2011 on a charge of second-degree murder and using a firearm in the commission of a felony.

When he went on trial in the summer of 2013, Circuit Court Judge Karen Ahn didn’t allow the jury to consider a lesser charge of manslaughter, saying she “didn’t think there was any evidence to support manslaughter anyway.”

The jury deadlocked in the case, resulting in a mistrial.

In 2014, prosecutors again pursued a murder charge against Deedy. But when the jurors went into deliberations, Ahn, who was again presiding over the case, allowed them to consider lesser charges of reckless manslaughter and assault.

Related Podcast BREAKING: Hawaii Supreme Court rules that Christopher Deedy should be tried a third time in connection to the 2011 death of Kollin Elderts. Need background? Listen to @OffshorePodcast Season One, “A Killing in Waikiki.” https://t.co/ud9s73qcfg pic.twitter.com/Btgli1fful — Offshore (@OffshorePodcast) December 14, 2017

This time the jury acquitted Deedy of second-degree murder and deadlocked on all the other offenses. Ahn left the door open, however, for the Prosecuting Attorney’s Office to pursue a third trial against Deedy on the lesser charges.

Deedy filed motions to get the case dismissed, which Ahn denied. He then appealed to the Hawaii Supreme Court, saying, among other things, that a third trial would be double jeopardy.

He also argued that it would violate the Supremacy Clause, which protects federal agents from being prosecuted in state court for doing their job.

Deedy’s attorney, Thomas Otake, said Thursday he would appeal the state Supreme Court decision through the federal system. The legal team has not yet decided whether to start with federal district court or go directly to the U.S. Supreme Court, Otake said.

Cory Lum/Civil Beat

He criticized the effort to prosecute Deedy a third time on manslaughter charges, especially since prosecutors have already said publicly that the evidence doesn’t support it.

“We believe it’s misconduct of the worst kind,” Otake said.

The federal courts will consider constitutional issues that have not been at play in the state proceedings, he said. In the meantime, Deedy’s attorneys will try to stay the third trial until a final resolution in federal court, which could take years.

Otake said he had spoken with Deedy.

“He’s obviously disappointed and looking forward to putting this behind him,” Otake said.

Cory Lum/Civil Beat

Kaneshiro said it was not unusual to try a case three times, and recalled doing it himself in a murder case. He declined to discuss evidence or how a new manslaughter trial might differ.

Regardless of any federal proceedings , the state trial court will decide the timeline, he said. He expects a status conference soon.

Kaneshiro declined to estimate the cost of retrying the case, saying, “We don’t put a cost to achieving justice.”

What’s important, he said, is that there’s a legal and factual basis for a retrial. “We should not get caught up and lose that message.”

Deedy’s lawyers submitted multiple arguments to the Supreme Court for why a third trial would constitute double jeopardy. They also argued unsuccessfully that Deedy should have been immune from state prosecution because he was acting under his authority as a federal agent when he shot Elderts.

Deedy was off duty at the time of the shooting, and failed to explain “… how a night of socializing and drinking alcoholic beverages in Waikiki with friends was part of his ‘official duties’ as a State Department agent,” according to the court opinion issued Thursday.

In her dissenting opinion, Nakayama wrote:

In other words, the State unambiguously argued during the first and second trials that there was no rational basis in the evidence to support a conviction of reckless manslaughter. Yet, in defense of its opportunity to try the case a third time, the State completely flipped its position, and argued that there is a rational basis in the evidence to support a conviction of reckless manslaughter.”

Editor’s note: Civil Beat examined the death of Kollin Elderts and Deedy’s first two trials in season one of Offshore. The 10-episode podcast series also looks at national issues surrounding use of force, Hawaii history and race relations.

Read the Supreme Court decision and Associate Justice Paula Nakayama’s dissenting opinion: