As more details surface about the shooting death of Kailua resident Kollin Elderts by a federal agent who was in Honolulu for the Asia-Pacific Economic Cooperation summit, the videos showing exactly what took place remain locked in judicial limbo.

It’s also unclear at this point what will happen to those videos, including the surveillance tape from the Waikiki McDonald’s where Elderts was shot, now that a judge has for the second time refused to make them public and the defense attorney for U.S. Special Agent Christopher Deedy is pushing to get the murder trial into federal court.

“It’s a very interesting issue,” said Jeff Portnoy, who is representing the Honolulu Star-Advertiser and other media in trying to unseal the videos. “This is so rare. Will the state files be transferred in their entirety over to federal court? That would be my guess, so it would remain sealed unless a federal judge was asked to unseal it.”

If that were to happen, Portnoy said it would be up to his clients on whether fight to make the videos public. He also said Deedy’s attorney, Brook Hart, could potentially submit the videos as pre-trial exhibits in federal court.

“It may be that it won’t come out until trial,” Portnoy said. “It’s a very unique situation that I don’t have a lot of experience in.”

The Most Recent Court Battle

Portnoy was in Honolulu Circuit Court on Wednesday arguing that Judge Karen Ahn should make public the McDonald’s surveillance video along with footage from a bystander’s cell phone. It was his second time arguing that issue in the past month.

Portnoy is urging Ahn to reconsider her earlier decision to side with prosecutors and seal the videos in part because of a public back-and-forth between the attorneys arguing the criminal case. Hart’s recent request to move the case to federal court now gives a play-by-play of what’s in the McDonald’s surveillance video, he said, in effect skirting the state court decision to keep that information secret.

Ahn, however, was unmoved, saying Wednesday that her previous reasons for sealing the videos and heavily redacting Hart’s motion that they were attached to still stand. In essence, she believes the video would go viral and lead to widespread speculation by potential jurors. In her first ruling on the matter, she also said images can be more salient than words.

“I just don’t see the purpose or the good of adding to this, what I think Mr. Portnoy has called, piecemeal submission of materials or allegations by the lawyers,” Ahn said. “To release the video is simply to add one more piece that is open to exactly what the court is concerned about.”

After the proceeding, Portnoy left open the possibility that he would appeal Ahn’s ruling. He said a factor his clients will have to consider is whether they think it’s worth fighting for a video even though its contents have recently been revealed.

“I believe the judge is dead wrong,” Portnoy said. “I thought she was wrong the first time and think she’s, as I said, doubly wrong this time in light of what’s happened. But the information has now come out, and you now have to weigh that.”

On Tuesday, Hart filed a motion in Hawaii’s U.S. District Court asking to move Deedy’s murder trial there, saying federal agents have a right to have their cases heard in that forum.

Hart said it’s appropriate in this case because Deedy was acting as a U.S. State Department agent when he shot Elderts, and is invoking a defense based on a federal law that states he could be immune from prosecution.

The motion also recounts what happened in the early morning hours of Nov. 5 inside the Kuhio Avenue McDonald’s when Deedy shot Elderts. Elderts was the first to attack, the court filing says, and he was shot while trying to wrestle Deedy’s gun away from him.

‘Are You Going to Shoot Me?’

Here’s how Hart told the tale:

Deedy was “socializing” in downtown Honolulu with his former college roommate, Adam Gutowski, and Gutowski’s girlfriend, Jessica West. Around 2:30 a.m. they went to McDonald’s.

While there, Elderts and his friend, Shane Medeiros, were seen harassing another man, Michel Perrine, who was at the counter ordering food. According to Hart, Elderts was directing racial slurs at Perrine, who told Elderts to leave him alone and that he was “local.” McDonald’s staff also asked Elderts to stop hassling Perrine.

Elderts and Medeiros continued to taunt Perrin while they were sitting at a table, with Medereiros telling Perrine he “better stop eyeing them up.” At this point a McDonald’s security guard told Elderts and Medeiros, “No more troubles here … if you make troubles you can leave.”

Hart said Deedy, who had approached Perrine during all this to ask if he was okay, “sensed” that a fight was “imminent, and that Perrine was in danger.”

Deedy then tried to calm Elderts and Medeiros, saying that no one wanted any trouble and that everyone should just “drop the matter.”

Elderts, who was seated, then shot his verbal barbs toward Deedy, Hart said.

“Eh, fuckin’ haole, you like beef?” Hart quotes Elderts as saying.

This is when Deedy showed Elderts his badge and credentials, identifying himself as a law enforcement officer. That caused Elderts to become even more irate.

“Are you going to shoot me?”

Hart said Elderts rose from his seat and reached toward his waistband. Elderts then said Deedy would need to shoot him or he would “get” or “gut” the federal agent. He again reached for his waistband.

“Elderts was yelling at Special Agent Deedy, saying things like ‘oh you have a gun?’ ‘shoot ‘em then,’ and telling Special Agent Deedy he better not be bluffing, because Special Agent Deedy would regret it, or words to that effect,” Hart said. “Special Agent Deedy continued to watch Elderts’ movements for signs of a weapon and further advancement.”

Elderts then rushed Deedy, who responded by kicking him in the leg, a move Hart said is a “defensive technique used against an assailant who suddenly attacks an officer in close range.” While doing this, Deedy lost a slipper.

Gutowski stepped in, only to be punched and kicked by both Elderts and Medeiros. As Deedy tried to intervene, Elderts punched him in the face, knocking Deedy backwards to the floor.

As Deedy got up, Elderts and Medeiros were still beating Gutowski, who was “bleeding profusely from his head and face.”

When Deedy again yelled at them to stop, with both arms “outstretched, in front of him, palms forward,” Elderts turned toward him with his fists clenched.

Deedy pulled his gun, a Glock 26, from his holster and pointed it at Elderts, telling him to “freeze.”

“Elderts continued to advance towards Special Agent Deedy with his fist cocked back preparing to hit Special Agent Deed in the face a second time. Elderts charged Special Agent Deed to the point where Elderts ran into Special Agent Deedy’s outstretched left palm.”

Elderts grappled with Deedy, pushing him backwards across the room toward a toy display. He reached for Deedy’s gun. Two shots were fired.

Deedy and Elderts fell to the floor with Elderts on top. Elderts then punched Deedy in the face while at the same time trying to grab the gun from Deedy. The last shot was fired.

The Aftermath

The federal agent once again lifted himself off the floor, searched Elderts for a weapon and told people to call the cops. Deedy then used a pocket knife to cut open Elderts’ shirt and “render aid” until the police and paramedics showed up.

Deedy was arrested. He had a broken nose and scrapes on his face, back and elbows. Police reported he had slurred speech and glossy eyes.

Elderts was pronounced dead. Subsequent tests by the medical examiner found he had a blood-alcohol level of 0.127 (over the driving limit of 0.08) along with metabolites of cocaine and marijuana.

He also had gunshot residue on his hands. Deedy’s gun, meanwhile, had a spent cartridge inside, which Hart said is “consistent with interference with the slide and case ejection process at the time of the third shot.”

A federal judge still needs to rule on whether Deedy’s case will be moved to federal court. He’s now charged with second-degree murder and a felony weapons count.

Hart has mentioned the possibility of changing the trial venue. Although he hasn’t yet filed a motion to do so, he said if the case remained in the state court system it could go to another island. But if it went to federal court, it could be moved to another state.

Read the filings here: