MISTRIAL ALERT - Gerhardt Konig GUILTY of Attempted Manslaughter?! Not so Fast, my Friend.

Hold onto your seats folks, because the trial of the year just took a massive turn. We’ve got the verdict in for Dr. Gerhardt Konig, but before anyone gets too comfortable, let’s talk about why this "guilty" verdict might just be a temporary placeholder until the great Tommy Otake files what is sure to be a lengthy and detailed motion for a mistrial, or an appeal.

Seasoned attorney and legal analyst Megan Kau first brought the possibility of mistrial to my attention shortly after the foreperson gave her first interview, and after a deep dive with several of the best legal minds in Hawaii, I can confidently assert a mistrial is all but certain.

TAKE AWAY #1 - THE SMOKING GUN: THE VERDICT FORM ERROR

The jury found Dr. Konig guilty of Attempted Manslaughter based on Extreme Mental or Emotional Disturbance (EMED). But there’s a giant, glaring hole in the mechanics of that decision.

• The Law: Under Hawaii procedure, EMED isn't a "standalone" choice you just pick off a menu.
• The Mitigation: the jury must first find the defendant guilty of Attempted Murder in the Second Degree beyond a reasonable doubt. CLICK HERE for the statute. 
• The Proper Order: Only after that finding should they move to a Special Interrogatory to decide if Dr. Konig was under extreme mental or emotional disturbance.
• The Error: Page 1 of the verdict erroneously listed Attempted Manslaughter (EMED) as its own standalone option. You can't be guilty of a "lesser included" without first being found guilty of the "greater" charge it’s included in. It’s procedurally and mechanically impossible.

Here is the form ⬇️

The verdict form provided (above) to the jury was procedurally flawed because it bypassed the necessary sequential step: the jury must first find the defendant guilty of Attempted Murder in the Second Degree before they can even consider using a special interrogatory to reduce that charge to Attempted Manslaughter due to emotional distress.

Since the special interrogatory does not include the required finding for attempted manslaughter—which was erroneously placed on the main verdict sheet as a standalone option—the form is defective. This procedural error effectively creates a shortcut that bypasses the mandatory legal finding of Attempted Murder in the Second Degree, rendering the entire verdict procedurally unsound.

Hence, grounds for a MISTRIAL!!! 

I don’t have published numbers on this, but I do have the next best thing; the opinion of 30+ year attorney and legal heavyweight Victor Bakke. He told me, 

“Faulty jury instructions is the #1 reason for mistrials.”  

Takeaway #2 - A STAR IS BORN - Flowers for Prosecutor Joel Gardner 

I'll be the first to admit it, I mistakenly thought Mr. Gardner’s heavy lean into premeditation was an error, but I was flatly wrong; or in the spirit of the legal system we’ll say “mea culpa.” Gardner wasn't trying to set up premeditation, which isn't a requirement for Attempted Murder 2; he was expertly establishing motive. He knew the physical evidence was thin—no syringe was found at the scene—so he leaned into the tools found at the doctor's home to secure a "no bail" status at an earlier bail hearing. 

Mr. Gardner became the perfect foil to Mr. Otake on the Court Tv YouTube stream chat. There were many comments about his "luscious locks" trending and I believe there was a Halo effect from the white knight crowd and marital affair deniers in the chat. When he gave the post verdict interview, it was obvious, “a star was officially born.” Mr. Gardner went up against the best criminal defense attorney of his generation and secured a conviction, and jail mail knows what a tremendous feat that was and I am officially giving him his flowers. 

I thought Mr. Gardner showed tremendous mental toughness by standing strong in the middle of the "Otake storm". It might be missed on the stream, but in person, Tommy Otake is a domineering presence in the courtroom.

Mr. Otake’s objections are vigorous and feel like a physical shoulder check to the opposition; you have to witness it in person to understand how he bends the reality of the courtroom. In the face of these daunting odds, Gardner wasn’t rattled; he played within himself and leaned into his strengths.

Each objection felt like a verbal browbeating, and the constant threat of censure was like sharp elbows swinging in close proximity. There were valid questions about whether Gardner could perform in the spotlight as lead counsel rather than second chair, but he passed with flying colors. Tip of the cap to Mr. Gardner.

THE "TIGER WOODS" OF DEFENSE: TOMMY OTAKE

Watching Tommy Otake in court is like watching Tiger Woods at his peak. There is a legitimate argument that you would take Tiger over the entire field to win a major; the same is true of Mr. Otake—your money is best placed on him winning a favorable outcome versus a conviction. You aren't just trying a case; you are managing a media circus and the heavy reputation that comes with his aura. When Tommy enters the room, there is a "realm shift"—the God of War has entered the courtroom.

Despite the current status of the verdict, Tommy took a charge carrying a mandatory life sentence and squeezed it down to a probationable offense. He proved that even with a difficult set of facts, he is worth, at minimum, a one-offense reduction, if not an outright acquittal—which, given the faulty verdict form, is still very much on the table.

THE FINAL WORD

I am the founding partner of the law firm “JAIL MAIL and Associates.” Our review shows this case is closer to a mistrial than a sentencing. If my published claim works out, I’m getting my suit tailored and clearing a seat next to Manta Dircks for the retrial. 

Stay loyal, stay informed.

— Jail Mail Nick

P.S. It is important to note that Judge Wong explained the mechanics of the law perfectly during the jury instructions. 

Something must have been mishandled between the reading of the proper instructions and the drafting of the faulty paperwork. 🫠