Something’s Rotten in the State of Hawaii’s Bail System

In continuation of our discussion on the Gerhardt Konig matter, I wanted to take a deeper dive into the diminishing returns of excessive bail, and why, in this case, Mr. Konig should have never been held without bail. But first...

🧑‍⚖️ When Experience Matters Most

Thank goodness the Konig family was able to hire attorney Thomas Otake. Whenever your rights are violated, there’s no use simply lamenting the unfairness of the system—the better option is to lawyer up and mount a defense. Mr. Otake is no stranger to fighting back when procedural violations occur.

When Mr. Otake defended Richard Obrero—a man charged with several counts of Murder in the Second Degree following a self-defense shooting against intruders at his Kalihi home—he faced a critical constitutional issue. After a grand jury declined to indict Mr. Obrero, the case should have ended. Instead, the prosecutor's office attempted to circumvent the grand jury’s decision by filing a new criminal complaint and pursuing a preliminary hearing.

Not on Tommy’s watch. 

Mr. Otake challenged the move all the way to the Hawai‘i Supreme Court, arguing that serious felony charges must be initiated by grand jury indictment under Hawai‘i law. The Court ruled in Obrero’s favor, and subsequent legislation was passed to protect citizens from these backdoor prosecutions. To this day, Richard Obrero, as well as others, remain free because of that fight.

🔹 Why I Titled This Newsletter: “Something’s Rotten in the State of Hawaii’s Bail System”

Mr. Konig should have never been designated as "no bail" without a proper hearing to determine if one of four legal conditions was met. Attempted Murder in the Second Degree is a bailable offense—unless the prosecution can prove one of the following:

1. Serious flight risk,

2. Risk of obstructing justice or intimidating witnesses,

3. Danger to the public, or

4. Risk of ongoing criminal activity.

Instead of filing a motion and presenting those arguments in court—where defense counsel could respond—the prosecutor bypassed that process entirely. They went to the grand jury, where proceedings are secret and defense counsel isn’t allowed.

That maneuver ensured no rebuttal, no cross-examination, and no transparency. It’s a loophole I’ve previously written about in Jail Mail—where the government uses the grand jury to quietly increase or revoke bail without pushback.

As the saying goes, a grand jury could indict a ham sandwich—and in this case, they used that one-sided forum to engineer a "no bail" outcome Mr. Konig couldn’t challenge. That’s not justice. That’s gamesmanship masquerading as justice.

🏛️ But for the Sake of Argument, Let’s See if Any of the 4 Criteria Are Met

1. Serious Flight Risk

Mr. Konig is not a serious flight risk. Under HRS §804-3(c), a rebuttable presumption of flight arises only when a defendant is charged with a criminal offense punishable by life without the possibility of parole. In this case:

• Mr. Konig is charged with Attempted Murder in the Second Degree.

• the maximum sentence for Attempted Murder in the Second Degree is life imprisonment with the possibility of parole.

• There has been no finding that Mr. Konig is subject to enhanced sentencing.

Therefore, there is no legal presumption that he may flee the jurisdiction.

2. Risk of Obstructing Justice or Intimidating Witnesses

There is no rebuttable presumption that Mr. Konig poses a risk of obstructing justice or intimidating witnesses. Under HRS §804-3(c), a rebuttable presumption only applies if:

• The defendant has a prior conviction for a serious crime involving violence against a person within the last ten years (Mr. Konig does not).

• The defendant is already on bail for a violent felony charge (Mr. Konig is not).

• The defendant is currently on probation or parole for a violent felony (Mr. Konig is not).

Mr. Konig has:

• No prior convictions.

• No pending charges.

• No history of violence.

• Stable residence, employment, and family in Hawai‘i.

3. Danger to the Public

There is no evidence that Mr. Konig poses a danger to the public. Apart from the allegations in this case—allegations he is presumed innocent of—there is no history of violence, threats, or instability that would suggest he is a continuing danger to the community.

4. Risk of Engaging in Illegal Activity

There is no credible evidence that Mr. Konig poses a risk of engaging in future illegal activity. He is a 46-year-old professional with a spotless record and two young children. His career as a licensed anesthesiologist and his deep ties to the community make the possibility of future illegal conduct implausible.

🚫 The Case for $250,000 Bail

A realistic, functional bail amount is critical. Based on my industry experience:

$250,000 is sufficient to secure appearance without creating an artificial barrier to pretrial liberty.

Why?

💳 Two Elite-Level Cosigners Required

• Mr. Konig’s Mom and Dad would have to sign.

• Must guarantee full bond—$250,000 risk

  🏠 Real Property as Collateral

  • Must sign mortgage lien on property with $250,000 in equity

In my professional experience, fugitives have been pursued across the globe for far less. I have personally participated in successful fugitive recoveries for bonds of $50,000, $100,000, and $75,000, locating fugitives in Morocco, South America, and the Philippines. A $250,000 bond creates real accountability. A $1 million bond does not proportionally increase public safety or the likelihood of return to court—it simply destroys meaningful access to bail.

🏛️ Conditions Over Confinement

Mr. Konig deserves the opportunity to defend himself from a place of stability, not from a punitive pretrial cell. At the very least, conditions—not blanket detention—should be employed. If necessary, use:

• House arrest

• GPS monitoring

• Curfews

• Stay-away orders

• Mandatory employment and supervision

All permitted under HRS §804-7.1, which requires courts to impose the least restrictive conditions necessary to ensure return to court and protect the public.

We’ll see what the Honorable Judge Wong determines in a hearing coming up very soon. Stay tuned, folks — I have no doubt the court will rise above prosecutorial misconduct, honor the law as written, and craft a thoughtful, lawful compromise.

Be well folks,

-Got Bail Nick