HONOLULU (HawaiiNewsNow) - Both those who opposed and those who supported Judge Karen Ahn's decision to include manslaughter in the Christopher Deedy retrial say they were astounded by her ruling Friday.
"Am I surprised? Yes. Am I disappointed? Yes. I think the defense put on an excellent defense and the prosecution presented the same evidence they presented last time and there was no request for the court to give a manslaughter instruction, so it's very interesting the court would do it now at this juncture," said Myles Breiner, a criminal defense attorney.
Legal experts say the court has the authority to instruct jurors to consider a lesser charge of reckless manslaughter -- even if there is only the tiniest trace of evidence to support it.
"The judge really had no choice. Hawai'i law says that even if the defense and the prosecution -- if neither one of them ask for it -- if there's some evidence that was presented to the trial court that could justify the lesser included offense of reckless manslaughter, then the judge must give it," said Ken Lawson, a criminal law professor at the University of Hawai'i at Manoa.
Lawson says the judge made the right call, but says he's stunned the prosecutor's themselves didn't make the request -- either for the retrial or the first time around.
"That's done so that people don't escape liability. Let's say that he wasn't guilty of murder. Let's say the only charge the judge gave was a murder charge and you're a juror back there and you're saying look, 'I don't think it was murder, but I think it was manslaughter'. If you don't have the manslaughter option, you have to find him not guilty of murder, even though you think he's guilty of something. Now he walks free, even though you may believe he's guilty of manslaughter. That's the danger of it, that's why the Supreme Court said no we're not going to allow that," explained Lawson.
Breiner says he's disappointed by the ruling and finds it particularly unusual because the prosecution presented the same case they did last time and the judge didn't overrule them then.
"I think the judge does not want the jury to come back with no decision so offering manslaughter is a compromise that neither the defense nor apparently, at least officially, the prosecution wants this hands -- in my opinion, an unfair advantage to the prosecution. If they're not requesting it and the defense is not requesting it, then I think the court should accede to what the parties want. The fact that Judge Ahn is doing this I think speaks more to what Judge Ahn wants and not what's appropriate for the situation," Breiner said.
Both Lawson and Breiner say they expect the defense to file an appeal if Deedy is convicted.
Experts say if there is a second mistrial, there is still a chance prosecutors will try for a third time. They say the defense can petition to dismiss the case after two consecutive trials, only if there was no difference in the evidence presented or witnesses. However, Judge Ahn ruled to withhold some evidence during the retrial that was originally presented last year.