State Circuit Judge Todd Eddins says U.S. State Department Special Agent Christopher Deedy’s third trial for a fatal shooting in a Waikiki McDonald’s restaurant will go on as scheduled.

“Until and unless the United States District Court issues an injunction staying these proceedings, the case will proceed,” Eddins said Tuesday.

Deedy, 33, is scheduled to stand trial for manslaughter in October for fatally shooting Kollin Elderts in November 2011.

Thomas Otake, Deedy’s lawyer, had asked Eddins to put the trial on hold as he appealed the case to the federal courts.

“The delay will be a small price to pay to ensure fairness and to truly see if the federal courts believe he should and could be tried a third time,” Otake said.

The Hawaii Supreme Court is the state’s highest authority for interpreting Hawaii law. The federal courts do not get involved in state court proceedings except in extraordinary circumstances or if a person’s state custody violates U.S. laws, treaties or its Constitution.

Otake says trying Deedy for manslaughter after he had been acquitted of murder violates his constitutional right against double jeopardy.

Deputy Prosecutor Tom Michener opposed a delay, especially since Deedy has yet to file a federal appeal.

“The federal court hasn’t even been asked to weigh in,” Michener said.

Deedy admits fatally shooting the 23-year-old Elderts but says he did so to protect himself and others.

His first trial in 2013 for murder ended in a hung jury. Both sides said Deedy’s conduct was not manslaughter; the trial judge agreed and did not give the jury that option. After the trial the state Supreme Court handed down several opinions requiring judges to let juries consider lesser charges in their deliberations.

The second murder trial, in 2014, ended with the jurors telling the court they had found Deedy not guilty of murder but were deadlocked on manslaughter. At Otake’s request, trial judge Karen Ahn acquitted Deedy of murder but ordered a third trial for manslaughter.

Deedy appealed Ahn’s refusal to dismiss the case. In a 4-1 opinion the Hawaii Supreme Court ruled in December that Ahn did not abuse her discretion, clearing the way for a third trial.

The federal courts have intervened on state cases before.

U.S. District Judge Leslie E. Kobayashi found in 2014 that a convicted rapist’s conviction and life sentence for a subsequent attempted sexual assault violated federal legal precedent. The defendant had unsuccessfully appealed his conviction and sentence four times to the Hawaii Intermediate Court of Appeals.

The 9th U.S. Circuit Court of Appeals in 2016 ordered the state to release the man from custody or resentence him because the state appeals court wrongfully rejected his claim that his appeals lawyer failed him by not arguing that his trial defense was damaged when the judge forced him to testify ahead of his other witnesses. The man was scheduled to get resentenced this morning to 20 years in prison.