Mistrial declared, Allan Agababa could face third trial - KUAM.com-KUAM News: On Air. Online. On Demand.

Mistrial declared, Allan Agababa could face third trial

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Deadlocked in 2014...and again, this week. It appears jurors can't seem to reach a unanimous verdict for accused murderer Allan Agababa. Earlier this week and after six days in deliberations, jurors reported they wouldn't be reaching a unanimous decision.

A breakdown of the numbers: 11 not guilty and 1 guilty for aggravated murder. As for the lesser included charge of murder, jurors were again divided: 5 not guilty and 7 guilty.

The hung jury was discharged as a result and a mistrial rendered. So, what's next?

"I haven't seen a third trial of anybody historically on Guam," stated Attorney Curtus Van de Veld aftr he walked out of the Hagatna courtroom. Two mistrials and still no conviction, Agababa could face a third set of jurors.

Asked what he thought could happen next, Van de Veld said, "Well, depends on how she rules on the motion for judgment of acquittal." Judge Maria Cenzon wouldn't act on any oral motions during Thursday's hearing, but instead asked parties to submit their motions in writing.

Agababa, who is charged with the aggravated murder of his mother to collect hundreds of thousands of dollars in her death benefits, has already spent four years in jail.

Should he be tried again, defense speculates he'd be at a great disadvantage. Said Van de Veld, "If there is a second retrial, he's so financially exhausted, he can't afford to pay for it. Allan has had the benefit of family who have supported him with financing for private counsel for the first and second trial. But they are financially exhausted. And he's going to end up with a public defender who's going to give less zealous representation, I think that's very much a concern."

In the event the court denies defense's motion for acquittal, Van de Veld says he still has a case against the government who he alleges mishandled or destroyed evidence.

Specifically, he says, Fentanyl patches found on Shelly Bernstein's body were never recovered or photographed. Though they're discussed at length during the three week trial, no such evidence was presented in court. Fentanyl, as we've reported, is a prescription painkiller more potent than morphine. At least three Fentanyl patches were found on Bernstein's arm the night she was found dead in her Tamuning home. Other patches were reportedly on her bedding, as well.

"We have this dispute about the two different ways which the homicide occurred," said Van de Veld. "One is that they claim it had occurred as a result of infliction of physical force to the right portion of the forehead of Shelly - and the other is this novel theory that came up in the retrial, which was that the multiple patches that she had on her body were as a result of them being placed by Allan. There's just not even a remote amount of evidence to support that."

The government, meanwhile, is anticipated to file a motion to amend the indictment against Agababa.

Prosecutor Jeremiah Luther said, "Your honor, the people are going to make an oral motion to amend the indictment. This may actually moot one of the complaints that Mr. Van de Veld has raised. We're making an oral motion to amend from aggravated murder to the lesser included offense of murder as a first degree felony."

He added, "It would be a motion to amend down."

Asked if it's because we're seeing difficulty in convicting Agababa for the charge of aggravated murder," Luther replied, "It's more of a procedural move."

The court will schedule a follow-up hearing after parties have filed their motions.

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