“They [Prosecution] know they have a weak or at least I believe they know they have a weak argument on the aggravated murder charge,” stated Attorney Curtis Van de Veld.
Guam – Now that a mistrial has been declared once again in the murder trial of Allan Agababa, the prosecution is looking to amend the charges against him by ditching the aggravated murder charge and downgrading it to a charge of murder.
On Monday, Superior Court Judge Michael Bordallo discharged the jury in the murder re-trial of Allan Agababa, at the time of the discharge it was cited that the jury was unable to reach a unanimous decision however the court did not officially make a declaration.
In an interview with PNC ,Allan Agababa’s Attorney Curtis Van De Veld explained that the discharge of the jury legally implies that a mistrial has occurred citing that a jury can not be discharged without basis.
Today in court, it was made official by Superior Court Judge Maria Cenzon, who stated, “Judge Bordallo had indicated that it would be a mistrial in this particular case.”
Here is how they jury voted:
In the charge of aggravated murder the jury was divided 11 not guilty, 1 guilty. On the charge of murder the jury was divided 5 not guilty, 7 guilty. This is the second time a jury of twelve was deadlocked.
The looming question: will there be a third trial or will the charges against Agababa be dismissed? It appears that we will not know the answer until after both parties file their motions.
Chief Prosecutor Jeremiah Luther notified the court that the AG will be motioning to amend the indictment against Agababa.
“We are making an oral motion to amend from aggravated murder to the lesser include offense of murder as a first degree felony–intentional murder,” stated Luther.
According to Van de Veld, the motion the prosecution intends on filing is only to establish further basis to continue to try his client.
“They want to be able to argue with that charge added into the indictment that the 7 to 5 split on that charge justifies a re-trial but that isn’t the charge against him. There is only one charge in the indictment so they know they have a weak or at least I believe they know they have a weak argument on the aggravated murder charge,” argued Van de Veld.
If it does go to a third trial, Van de Veld says his client has a higher risk of conviction because he is at a financial disadvantage and the government’s unwillingness to pay for expert witness testimony goes against a fair and impartial trial.
However, before the court can proceed with the prosecution’s motion, it must first address the motion of acquittal and motion for release should the acquittal not be granted.
“At this point the only charge that the court has any jurisdiction over is the charge of aggravated murder and I believe, because the jury, when they were asked to indicate their division, indicated that it was 11 not guilty and 1 guilty. So there are stronger arguments relative to that that this is not fair to make Mr. Agababa have to go through a third trial,” explained Van de Veld.
Agababa has been sitting in jail for four years since he was arrested and accused of slaying his mother Shelly Bernstein in August 2013 for her death benefits.
The trials have weighed down not only on Agababa but also on his family and friends as his mother’s lifelong close family friend Vicky Gayer shared, “Allan’s already lost so many years of his life and he’s lost his mother he has lost so much his business he had before he came here to take care of his brother. It’s injured his relationship with his brother and he’s innocent.”
She is hopeful that Judge Maria Cenzon will grant Van de Veld’s motion, however it is unclear when the motions will be heard as no date for a motion hearing has been set.