The Attorney General’s Office has indicated that they intend to prosecute Agababa a third time.
Guam – On Monday, Judge Michael Bordallo discharged the jury in the case against murder suspect Allan Agababa, but no declaration has officially been made by the court.
“It constitutes mistrial as a matter of law. The question becomes whether or not there can be a further retrial of the charges,” according to Attorney Curtis Van de Veld, the defense counsel for Agababa.
This is the second time Allan Agababa has been tried in court for the murder of his mother Shelly Bernstein. In the initial trial, a deadlocked jury was declared after three attempts were made by the jury to come to a unanimous decision.
So what happens now?
“Generally, when it is an initial trial and there is a hung jury, courts don’t exercise a supervisory authority to dismiss charges. There’s issue about whether or not there is sufficiency of evidence which can be argued but the ultimate initial decision rests with the Attorney General’s Office,” explained Van de Veld.
According to Van de Veld, the Attorney General’s Office has already announced their intention to continue to proceed against Agababa.
“So what will happen is–and if the court determines to allow a third trial–there will have to be transcripts prepared from the second trial and then the court will schedule when the re-trial will occur,” stated Van de Veld.
In the meantime, the court will take up the issue of Agababa’s continued confinement or release.
Agababa was held on $1 million cash bail and with no financial resources or eligible family on island to act as third party custodians, his chances of being released sit in the courts hands. After the first hung jury, a motion for his release was denied by the court.
“He has been confined for four years. He has, I believe, has spent a considerable amount of time in prison for someone who to the charge of aggravated murder the jury was deadlocked, 11 for not guilty and 1 for guilty. I believe its a miscarriage to justice to continue to confine him,” said Van de Veld. “I will be orally moving the court for dismissal on the fact that the government has twice charged Agababa and been unable to produce evidence sufficient for the jury to be able to reach a verdict and that the continued trial of Mr. Agababa denies him due process. Mr Agababa was denied sufficient funding from the court to pay for the services of Dr. Cohen, the medical examiner from California who disputed Dr. Espinola’s findings. I suspect the court will continue to deny him adequate funding for those services which will place Mr. Agababa in a position of being a defendant who lacks sufficient resources in order to have a fair and impartial trial.”
While Van de Veld has represented Agababa during the trial, he is unsure if he will continue to be his legal counsel or if Agababa will receive court appointed counsel.