Who started the fight?

That’s the central question in the murder trial of U.S. State Department Special Agent Christopher Deedy.

It’s also something that continues to be disputed between the prosecution and defense.

The most recent back-and-forth surfaced Tuesday just before a scheduled hearing in the case.

In court records filed Tuesday morning, Deedy’s attorney, Brook Hart, rebutted the latest claims from the Honolulu prosecutor’s office that his client struck first in his early-morning dispute with 23-year-old Kailua resident Kollin Elderts.

That fight occurred inside a Waikiki McDonald’s on Nov. 5, and Deedy, who was in Honolulu as part of an Asia-Pacific Economic Cooperation conference security detail, contends he’s immune from prosecution because he killed Elderts while acting in self defense and as a law enforcement officer.

On Friday, Deputy Prosecuting Attorney Janice Futa submitted a new court filing saying Deedy, 28, was in fact the “first aggressor,” and that he turned a “verbal argument into a physical confrontation” by kicking Elderts in the stomach and then throwing his slipper at him, hitting Elderts in the head.

Hart disagrees, saying it was Elderts who was the aggressor. He cited in his argument a much-discussed surveillance video from the Waikiki McDonald’s restaurant where the fight occurred.

That video — which Hart says is “the most important witness of all” — has been sealed from public view by Honolulu Circuit Judge Karen Ahn. The video has no sound, which is one reason the judge has it sealed to guard against speculation.

In his rebuttal, Hart describes exactly what he believes took place inside of the McDonald’s.

Here’s his take:

Elderts was sitting at a table inside the McDonald’s when Deedy “calmly and professionally” showed the 23-year-old his “federal badge and credentials.” Hart doesn’t say why Deedy felt the need to pull out his badge.

After Deedy identified himself as a federal law enforcement officer, Elderts stood up while reaching into his waistband and “angrily” advanced toward Deedy, who then took several steps backward.

Elderts went past two witnesses, including Jessica West, the girlfriend of Deedy’s college roommate Adam Gutowski, who was also at the restaurant. As Elderts “menacingly aggressed toward” Deedy he entered the agent’s “personal space.”

It’s at this point, Hart argues, that Elderts broke federal law by “assaulting, resisting, or impeding a federal officer.”

Deedy then “deployed a defensive frontal kick to Elderts’ shin area.” When he did so Deedy lost his right slipper. He later lost his left.

“But contrary to pretrial statements of the State’s witnesses, the video and the screen captures do not show (Deedy) throwing a slipper.”

It’s clearly been difficult for the prosecution and defense to agree on much of anything leading up to the trial, which is scheduled for September.

While that’s not uncommon in court proceedings, today’s motion hearing on whether the prosecution should release certain evidence to the defense as part of its discovery saw both sides nitpick one anothers’ arguments for more than an hour.

The prosecution accused the defense of going on a “fishing expedition” for information, such as police officers interview notes and witness criminal histories. The defense, on the other hand, argued that the prosecution was being stingy with release of evidence that is normally made available to the defense.

During one exchange over whether Hart should get access to Deedy’s gun and holster, Futa argued that Hart could somehow ruin the integrity of it by, for instance, sneezing on it and tainting it with his DNA or other trace evidence.

“By and large we have been working together pretty cooperatively, however, I have to say that some of the things that have appeared in court have surprised me and I do not want to be caught by surprise again,” Futa said. “I do not want our cooperation to come back and bite the state in the butt because of something that happened during the inspection of the evidence.”

The only thing the two sides seem to have agreed on is that Deedy and Elderts were strangers when they encountered each other on Nov. 5. In fact, they say that fact is “abundantly clear.”

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