The God of War vs. The Verdict: Tommy Otake’s Next Fight

The “God of War”, attorney Thomas Otake’s campaign continues for justice for defendant Dr. Gerhardt Koenig.

Otake’s motion for a new trial, after months of time and several action-packed hearings and expertly written motions, has been denied. Yet those inside the system know that the case is not over, with sentencing coming in January of 2027.

Otake’s motion was denied based on the limitations of the court to review the heart of the issue: trying to rectify how a jury could reject 'intent to kill' yet still arrive at a verdict of attempted manslaughter due to extreme mental and emotional distress (EMED), which strictly requires that intent. The reason why the hearing was ultimately unsuccessful comes down to the basic principle that the court is not allowed to probe jurors based on their mindset, understanding, and thought processes during deliberation, because that is a prohibited question for the court to ask of jurors.

For the law school geeks, here’s the exact court rule:

So the whole point of the new trial motion depended on reconciling, probing, and investigating that conflict. However, the problem with getting to the bottom of that contradiction is that, obviously, the court is conflicted on how a verdict which isn't possible to come to was somehow concluded and accepted by the court. Yet an inspection of how that occurred is unfortunately both prohibited and not prohibited, because the court is allowed to circumstantially ask about one issue: whether a jury member was communicating with somebody on the outside during deliberations, which would be grounds for a new trial unless the burden of proving how it wasn't prejudicial is established by the government.

The government never needed to fully shoulder this burden to show how the communication was not prejudicial, because the court could only ask one thing: whether jurors themselves, or anyone knowing of somebody else, was communicating with an outside party during deliberations. The issue is, all they have to do is ask, and of course, there is a next-to-zero-percent chance that somebody would snitch on someone else on the jury, or even know if such communication took place. In the event of something taking place, all the person having outside communication would have to say is, "No, I myself—and I don't know of anybody else—had communication with somebody on the outside during deliberations." And that’s exactly what happened as each juror was asked the question.

What we really wanted to know was not if somebody was having outside communication. It was the heart of the issue: how could you have come to a conclusion of attempted manslaughter due to EMED without being unanimous on intent to kill? But the court was prohibited from asking that critical question.

The Precarious Position of The Honorable Judge Wong

Although I can't get into the mind of Judge Wong, I would assume that he, too, knows this contradiction and would have liked to have gotten to the bottom of it, but legally is prohibited from asking questions directly to the jury or allowing defense counsel to cross-examine jurors.

Although the idea of getting to the bottom of it would be in the interest of justice, our legal system prohibits the court from setting a new precedent and investigating the mindset of jurors during deliberation. So there was no way for Judge Wong to be able to legally allow the real question of how they came to a conclusion that attempted murder due to EMED was the case when the court is not allowed to ask the specific question of whether or not they were unanimous on the intent to kill.

Hot Take

My personal vibe analysis: Judge Wong knows that there's this huge conflict at the heart of this conviction. Given the God of War's history of making appeals and changing the law, it was the perfect setup to get Mr. Otake to appeal the case and further clarify the ability of the court in the future to ask questions about a verdict without violating both the law, previous case law, and the legal precedent where you're not allowed to ask specifically about the mindset of a jury.

Without a path or a carve-out for him to allow specifically the question of, "How did you come to the conclusion of attempted manslaughter due to EMED without first being unanimous on intent to kill?", an appeal ruling clarifying that such an inquiry is legal and that such carve-outs exist would mean future cases could grant the court permission for that narrow scope of inquiry—but only after it is ruled by a higher court that the trial court is allowed to do so.

The Tragedy of Gerhardt Koenig

The reason why I personally just can't let this go is that a doctor who has an otherwise clean legal history clearly was in a domestic dispute and did injure his then-wife, Arielle Koenig. What is lost in the mainstream is the setup: Mr. Koenig's wife was having an emotional affair and was clearly checked out of the marriage. That built a pressure cooker of a situation where, although one might be able to overlook a physical affair that then stops in the name of love to maintain the relationship, the emotional affair did not stop, and the agreed-upon truce to mend the relationship was violated on that hike when Arielle dropped the bombshell and reneged on her previous commitment to stop seeing Mr. Miller, the office affair subject.

It was a birthday vacation that Gerhardt planned as a way to try to save the marriage, only to be met with the reality that she would no longer consider quitting her job and cutting off contact with the emotional affair party. All the work and counseling that had been going on for months previous, was in vain. And yes, it is clear to anybody following the case that both Arielle and Gerhardt got into a physical altercation during that hike.

The problem is, Gerhardt's injuries do not match Arielle's through a twisted result of fate. The thing that screams mutual affray is that Arielle most likely pushed Gerhardt near the cliff's edge and did hit him with a rock. Although we'll never be able to prove the push, the rock piece has been conclusively proven: it's graphic and unsettling, but the opposite side of the bloody rock Gerhardt used to hit Arielle conclusively had her touch DNA on the opposite side. This substantiates Gerhardt’s side of the story—that they were in a mutual fight, not a one-sided, premeditated hit job where Gerhardt attempted to push her off a cliff, poke her with two needles, then murder her in broad daylight on a busy trail.

If his injuries were just a little bit more pronounced, it would be obvious that they were both fighting in a domestic dispute. However, Arielle was so convincing in her story about being pushed near the cliff's edge, and her injuries were so graphic, that it looked like Gerhardt went too far in his physical response to her. The story that Arielle told, although compelling on the stand, was completely unsubstantiated by the evidence. It bears repeating: no evidence of the two needles Arielle claimed were present was found at the scene of the crime. She instead raided Gerhardt’s personal “to-go” bag of medical equipment from his Maui home office; nothing was found on the Oahu trail.

I believe Gerhardt did hit her with that rock, obviously—several times. But none of the medical evidence shows that she was hit approximately 10 times, as Arielle said. Arielle backtracked her story and said approximately 10 times, or felt like 10 times, when the forensic evidence from the experts was all unanimous: it was multiple times, but nobody who testified said it was 10 to a dozen times. The best that anybody could estimate was multiple times, which does fit the storyline of Gerhardt, who said he hit her twice.

I fundamentally disagree with putting somebody away for the possibility of life with parole, or the lesser charge of attempted manslaughter due to EMED for 20 years, when all he did was protect himself after being hit, and most likely responded with two to three hits with a rock, which is what the evidence dictates. I never thought that Gerhardt should have to be a martyr and have to wait for an appeal in order to prove that what was most likely an assault in the second degree, or at worst an attempted assault in the first degree, was somehow charged as attempted murder.

The Problem with the Legal System

Unfortunately, the timeline for an appeal in Hawaii is just too long for somebody who's the victim of a defective verdict. The pre-sentencing investigation report, which is required before sentencing, has a projected timeline of four months before completion. That's completely unacceptable.

And if we're gonna talk about reform within the judicial system, a pre-sentencing report at most should be able to be completed within 30 days—and I'm being very generous by saying 30 days. The office needs to be properly staffed, and the workflow needs to be optimized for speed, because there's no way the contents of a PSI report legitimately take four months to complete.

The second reform that needs to happen is that an appeal typically takes one to two years before it's even allowed before the appellate court. I asked a few top attorneys what the holdup was, and unfortunately, it could be months just to get the transcript of the trial for analysis, just to get started on filing an argument for an appeal. The mechanics take too long for somebody who's been proven guilty under a defective verdict. So although there are many issues within the judiciary, this is a glaring problem which is easily fixable through optimizing the process through the use of technology.

Conclusion

Let's not forget that Thomas Otake literally went to the Supreme Court and changed the way that felony cases are charged in the state of Hawaii due to procedural flaws (State v. Obrero). Let's not forget that he also went to the Supreme Court and got a second election granted for Tommy Waters. Furthermore, he spent the better part of a decade fighting for Iosefa Pasene; after trying the case three separate times, the state finally secured a conviction on the third attempt, which the Hawaii Supreme Court ultimately overturned due to egregious prosecutorial misconduct.

The God of War is tireless, and he goes on campaigns not only in the interest of justice—I suspect Tommy takes on such enormous challenges for sport.

And if I know one thing about the Ghost of Iolani, it is that he is ever-present and will never go away, and the legend of his unexhaustible drive will be the subject of legal lore in the state of Hawaii for years to come.

May justice be served,

-Jail Mail Nick