The Aug. 13 sentencing for the Maui anesthesiologist convicted of attempted manslaughter of his wife was taken off the court calendar Thursday to allow for a hearing on his motion to vacate the judgment and to order a new trial.
Attorneys for Gerhardt Konig contend the jury erred in its guilty verdict because it misunderstood the jury instructions and allege possible outside influences.
Konig was indicted on second-degree attempted murder of his wife, Arielle Konig, but the jury found him guilty of the lesser attempted manslaughter charge, which carries a 20-year sentence.
Konig’s lawyers, Thomas Otake and Manta Dirks, filed the May 15 motion, citing news reports of interviews after the verdict with the jury foreperson and a second juror to back its allegations.
At trial, the state presented evidence, including DNA, video, photo and testimony of many witnesses including two hikers who arrived at the scene and testified they saw Konig’s wife, Arielle, then 36, with blood streaming down her face from her head, Konig sitting on top of her, straddling her.
She alleged he hit her in the head multiple times with a rock, tried to stab her with a syringe containing an unknown substance, and tried to push her off a steep cliff during a hike on an Oahu trail.
Konig admitted to hitting her with a rock, but denied trying to push her off the Pali Puka Trail. He claimed self-defense, alleging she pushed him and hit him first.
He alleged his wife, a nuclear engineer, was after his life insurance money and custody of their two sons.
The state tried to prove Konig was obsessed with an emotional affair his wife had with a co-worker, and that he carefully planned his wife’s murder to inject her with a substance, then throw her off the cliff.
The motion says jurors’ statements after the verdict of attempted manslaughter, based on extreme mental or emotional disturbance (EMED), “strongly suggest that the jury misunderstood the Court’s instructions by returning a guilty verdict despite expressed doubt regarding the required intent for that offense.”
The jurors publicly said they did not believe Konig intended to kill his wife.
However, attempted EMED manslaughter requires proof of an intent to kill. The motion says jurors “described conclusions framed in terms of conduct that ‘could result’ in death or had the ‘capacity to kill.’”
The foreperson told reporters the jury concluded “there was definitely a scuffle” that “resulted in injury to the head that could be bodily injury and serious.”
“Ultimately, we just agreed” that Arielle Konig “was definitely hurt with a bodily injury to the head that could result in serious bodily injury.”
Konig’s lawyers secured a written and signed declaration from jury foreperson Makalapua Atkins stating she stood by the statements she voluntarily made to the media after the verdict.
“The jury did not unanimously believe that Dr. Konig had an intent to kill his wife,” the declaration reads. “I did not believe that Dr. Konig had an intent to kill his wife during the incident on the Pali Puka trail, and I believed that he was not guilty of Attempted Murder.”
Atkins told the Honolulu Star-Advertiser she works as a bailiff at the state Honolulu District Court.
The motion also says Juror No. 3 told KHON-TV the jury rejected the attempted murder charge, and said, “I don’t know if he was trying to kill his wife.” He also said he “had the capacity to kill his wife,” and that he was emotionally unstable.
The jury instructions said that the jury must find beyond a reasonable doubt that Konig intended to kill his wife.
If it could not, then it must proceed to the assault instructions, the motion says. The jury was given options of finding him guilty of different degrees of assault.
The motion says state law allows for a new trial for legal cause or where it shows a misunderstanding of the court’s instructions.
The defense argues: “The EMED manslaughter defense does not eliminate the intent-to-kill element. Rather, it mitigates what would otherwise constitute murder to manslaughter where the defendant acted under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation.”
Most notably, the defense asserts that should the judge vacate the judgment and order a new trial, the new trial cannot be for attempted murder, since that would be constitutionally barred.
They argue that since the jury did not convict Konig of attempted murder and instead returned a verdict on attempted manslaughter based on extreme mental or emotional disturbance, he cannot be retried on the attempted murder charge.
“Under Hawaii’s double jeopardy principles, that verdict operates as an acquittal of the greater attempted murder charge,” the motion alleges.
If trial Judge Paul Wong agrees with the defense, this will eliminate the risk of a different jury convicting Konig of attempted murder only to face a life sentence with the possibility of parole.
Since Otake is a privately retained attorney, Konig will have to bear the additional costs of a second trial, including attorneys’ and expert witness fees.
After the verdict, Otake said he would appeal. If the motion is granted, there would be no need to appeal to a higher court.
Wong set a deadline of July 1 for the state to file any opposition to the motion, which will be heard Aug. 14.
The trial drew local, national and international attention as it was live-streamed by Law and Crime, and news of the trial was televised on major networks and published in newspapers.
The motion alleges a viewer watching the trial as it was live-streamed commented he/she was communicating with a juror during deliberations and accurately stated the verdict before it was publicly announced.
The commenter said, “I’ve been texting with one of the juror’s (sic) and they’re going for count 3 attempted manslaughter.”
The motion says it “does not allege the foreperson is the juror referred to be the commenter; any of the 12 jurors could have been the person texting.”
The Honolulu Prosecutor’s Office declined to comment on the motion.
“While we remain grateful that Dr. Konig was not convicted of attempted murder, statements by certain jurors after the verdict demonstrate that he should not have been convicted of manslaughter either,” Otake said in a written statement. “Instructions on the law given to the jury can be very confusing, and these things happen from time to time. But now that the problems with the verdict have come to light, this motion provides the Court with an opportunity to prevent an unjust result.”
