The trial of a federal agent charged with killing a man inside a Waikiki McDonald’s should be moved to U.S. District Court because publicity about racial issues and animosity toward the federal government could hinder a fair trial in state court, his attorney argued Tuesday.

The request was made to the 9th U.S. Circuit Court of Appeals in the case of State Department Special Agent Christopher Deedy. He has pleaded not guilty to murder in the fatal shooting of Kollin Elderts of Kai­lua in November 2011 while Deedy was in town for the Asia-Pacific Economic Cooperation summit.

Deedy’s attorneys said he intervened while Elderts was harassing a customer with racial slurs. Elderts also used a derogatory term to refer to Deedy, the lawyers said.

Michael Green, a lawyer representing the Elderts family in a civil lawsuit, has said that even if that was true, it would not justify the shooting.

Lawyers for the agent want to move forward with the appeal even though a jury has been selected in state court and opening statements are scheduled for July 8.

Defense attorney Karl Blanke said the most critical publicity involving racial issues did not arise until six months after Deedy was arraigned.

Judge Dorothy Nelson, one of three randomly assigned federal judges in Hono­lulu this week to hear oral arguments for various cases, said racial issues must have been clear early in the case.

Deputy Prosecuting Attorney Donn Fudo argued that Deedy took too long to ask for the move to U.S. District Court.

"You can’t first litigate in state court and ask to move if there’s an adverse ruling," Fudo said after the hearing. "That’s just not correct."

He said "prattle" from attorneys to the media about racial issues doesn’t justify moving the case.

Judge Jacqueline Nguyen asked why Deedy’s appeal was not moot, considering jurors have already been chosen. Blanke said panel members won’t be sworn in until they return for the trial next month.

Fudo also argued that the appeal is moot because Deedy withdrew a motion to dismiss the case because he was acting as a federal law enforcement officer. Blanke said Deedy identified himself as a federal agent before Elderts assaulted him and was acting as a federal officer while protecting himself and others.

Blanke asked the judges for an expedited decision. It’s not clear when they’ll decide. The court receives thousands of cases and allows for oral argument based on merit.