A federal appeals court says the state can take U.S. State Department Special Agent Christopher Deedy to trial a third time for the November 2011 shooting death of Kollin Elderts in a Waikiki McDonald’s restaurant, but not for manslaughter.

The 9th U.S. Circuit Court of Appeals said in an opinion handed down Thursday that the state can try Deedy for assault.

Deedy’s lawyer Thomas Otake said Thursday’s ruling “brings us one step closer to ending this corrupt effort on the part of the prosecutors to win at all costs in this case.”

In Deedy’s first trial, the jurors ended their deliberations deadlocked on second-degree murder, the only charge they were asked to consider. Lawyers for the state and Deedy said the evidence didn’t support manslaughter. State Circuit Judge Karen Ahn agreed and made such a finding.

Following the trial the Hawaii Supreme Court handed down decisions on other criminal cases Ahn presided over. The state’s high court said juries must be given the opportunity to consider lesser charges in their deliberations.

In Deedy’s second trial for second-degree murder, Ahn instructed the jurors that they can also consider manslaughter and assault. The jurors acquitted Deedy of murder but were deadlocked on manslaughter. Ahn ordered a third trial for manslaughter.

Before the third trial, Deedy appealed to the Hawaii Supreme Court claiming that he had already been acquitted of manslaughter in the first trial when Ahn ruled that the evidence did not support the charge. The high court rejected Deedy’s appeal.

Deedy then took his case to the federal courts, claiming that his continued state custody to stand trial for manslaughter violated his constitutional protection against double jeopardy. Deedy was on bail.

U.S. District Judge Derek K. Watson agreed with Deedy and ordered the state to dismiss the criminal case and release Deedy from the conditions of bail and supervised pretrial release. The state appealed.

The 9th U.S. Circuit Court of Appeals agreed with Watson in finding that when Ahn made a finding in the first trial that the evidence did not support manslaughter, she acquitted Deedy of the charge. The appeals court also said that since Ahn did not make a similar finding for assault, the state can retry Deedy for first- and second-degree assault.

“The prosecutors have said over and over assault does not apply. Of course it doesn’t. But yet they press on. And so will we,” Otake said.

First-degree assault under Hawaii law is a Class B felony punishable by up to 10 years in prison. Second-degree assault is a Class C felony punishable by up to five years in prison.

The state could ask for a panel larger than the one comprised of the three judges who handed down Thursday’s decision to review its appeal or take the case to the U.S. Supreme Court. The Honolulu Department of Prosecuting Attorney did not respond to a request for comment.

Deedy testified in both of his trials that he intentionally shot the 23-year-old Elderts during a struggle Nov. 5, 2011, to protect himself and others after Elderts attacked him. Deedy, then 27, was based in Washington, D.C. He arrived in Honolulu 12 hours earlier to provide security for the Asia-Pacific Economic Cooperation conference in Waikiki.

He was not on duty and had gone out drinking with friends. Deedy denies being drunk. Elderts had a blood alcohol concentration of 0.12.

Deedy federal appeals court… by Honolulu Star-Advertiser on Scribd