On Nov. 5, Diplomatic Security Services Special Agent Chris Deedy, 28, was charged with second-degree murder in Hawaii. Initial news accounts of the incident quoted the civil attorney representing the family of the deceased and claimed that a drunken rogue agent followed the unarmed "victim," Kollin Elderts, 23, out of a Waikiki nightclub after exchanging words and summarily shot him in front of a McDonald's. Headlines were quick to characterize Deedy as a killer and a murderer.

To further stack the jury pool deck against Deedy, the prosecutor's spokesman said surveillance video coverage of the incident was conclusive by stating, "This is a killing caught on camera."

Deedy was part of a detail that was in Hawaii on assignment for the Asia-Pacific Economic Cooperation summit. On the night of the incident he was on personal time, hanging out with a college friend and the friend's girlfriend.

According to his attorney, Deedy consumed a small amount of alcohol earlier in the evening, but was not intoxicated when the incident occurred. The defense also says that contrary to initial headlines and attorney statements, Deedy did not exchange words with Elderts in the night club and Deedy did not follow Elderts out of the club and then shoot him in front of McDonald’s.

Witness statements and surveillance footage from the security cameras in the McDonald's reportedly reveal that Deedy was actually seated inside the restaurant with his friends when Elderts came through the door with another man. Witness accounts say Elderts and his counterpart were verbally abusive and belligerent toward customers. Video and witness accounts also indicate that Elderts and the other man were allegedly poised to physically strike a male customer right before Deedy confronted them.

The defense says Deedy approached Elderts and displayed his badge and credentials. Witness accounts add that Deedy asked Elderts to calm down and cease what was characterized as aggressive behavior. The defense says that video and witness accounts will show that Elderts responded to Deedy's request by attacking the agent and knocking him to the ground. Elderts, who had a 30-pound weight advantage over Deedy, allegedly also struck Deedy in the face several times.

Contrary to the initial news account, Deedy did not fire his weapon once into Elderts' chest. Instead, he fired three rounds from his weapon.

So how did Deedy miss twice? The video reportedly shows that Deedy drew his weapon, but did not immediately discharge it. Elderts then allegedly lunged at Deedy and grabbed the barrel of the agent's weapon. Two shots were fired during the struggle, but neither party was struck.

Listen to 911 calls from the shooting scene

Deedy was knocked to the ground, the video shows. Then Elderts allegedly lunged at the dazed agent, who then fired his weapon and struck Elderts in the chest. The medical examiner's report showed that Elderts had a high level of alcohol in his system, as well as drugs.

Deedy rendered first aid to the mortally wounded Elderts. That is not disputed by either side. Elderts' counterpart, who was allegedly beating on Deedy's friend, fled the scene before the police arrived. Deedy continued to render CPR after the police arrived, then he was subsequently taken to the hospital to treat his injuries.

At the hospital Deedy was arrested and now awaits trial. Given the harmful impact the initial headlines and attorney statements could have on a prospective jury pool, Deedy's attorney has asked that the prosecutor release the McDonald's video so it could be used for Deedy's defense. The prosecutor's office argues that release of the video will taint the jury pool, and it should only be shown in court once the trial begins.

The net effect is that Deedy's attorney now has to overcome accusatory news media reports and somehow hope he can get an impartial jury. He will have to overcome the prejudicial misperception that a rogue law enforcement officer shot an innocent unarmed man. Incidentally, Elderts had two prior arrests: disorderly conduct and driving under the influence.

Setting aside the hype, the jury will have to determine if Deedy was justified in discharging his firearm. Use-of-force expert witnesses will likely be called to testify and provide context for the actions taken by the accused. The prosecution will likely attempt to minimize the level of threat posed by Elderts by repeatedly describing him as "unarmed." Hopefully, the facts of the case will show that the level of force was justifiable and that Elderts did pose a lethal threat to Deedy.

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