Prosecutors say a convicted Maui anesthesiologist’s motion for a new attempted murder trial, based on jurors’ alleged misunderstanding of jury instructions, should be denied because a jury’s right to independence and privacy during deliberations should be
upheld.
Gerhardt Konig, 47, was tried in Oahu Circuit Court for attempted second-degree murder of his then-36-year-old wife, Arielle Konig. The trial ran from March 19 to April 7, when the jury received the case for deliberations after closing arguments.
The jury found him guilty April 8 of the lesser crime of second-degree attempted manslaughter due to extreme mental or emotional distress (EMED), which carries a 20-year sentence.
Konig’s lawyers quickly seized upon the post-verdict comments to the media made by the jury foreperson and a second juror to seek a new trial. Their motion was also based on an online comment by an unknown trial observer, watching it live-streamed, who claimed an unnamed juror told the observer the verdict before it was publicly disclosed.
The motion says jurors’ statements after the verdict suggest they misunderstood the court’s instructions by returning a guilty verdict of attempted manslaughter based on EMED, “despite expressed doubt regarding the required intent for that offense.”
In response to the motion, prosecutors say Hawaii state and federal rules of evidence and case law do not allow a jury verdict to be overturned based on a juror’s thought process in reaching its verdict.
Deputy Prosecutor Joel Garner also said in his July 1 memorandum that a jury cannot be punished because of its verdict, and that courts “have noted the chilling
effect that publicizing jury deliberations will have on an independent jury.”
“A cornerstone of jury independence, and even the jury trial system itself, is that jurors should be free to deliberate independently of any concern that their mental process in deliberations will be released for public scrutiny,” he wrote.
Jurors were instructed that if they found beyond a reasonable doubt that Konig intended to kill his wife, they had to determine whether he acted under the influence of EMED. If they made that determination, then they could find for EMED manslaughter, which “mitigates what would otherwise constitute murder to manslaughter,” the motion says.
If the jury did not find the intent to kill, they were instructed to proceed to assault instructions, and were given options of assault.
The defense filed its motion May 15, attaching a declaration apparently signed by the jury foreperson saying she stands by the statements she made to the media, along with media reports.
“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.”
The defense also says a second juror told KHON-TV he did not know if Konig was trying to kill his wife, that he had the capacity to kill his wife and was emotionally unstable.
The state had argued Konig was obsessed with his wife’s emotional affair with a co-worker, and that he planned a trip to Oahu, selected the hike on a dangerous trail with a steep dropoff, and intended to inject her with an unknown substance, then throw her off the cliff.
Konig alleged his wife initiated a fight by pushing him first and hitting him with a rock. He testified he was on top of her while she lay on the ground, but she grabbed his testicles, so he then hit her with a rock.
Hikers came upon the scene and testified they saw him on top of his wife, who was on the ground, bleeding profusely from her head.
The foreperson said the jury did not believe Konig intended to kill his wife, but that the injuries to the head could have resulted in bodily injury that could result in serious injury.
A Honolulu Prosecutor’s Office investigator met with the foreperson June 5 to ask her for an interview regarding her statements to the media and the declaration she purportedly signed May 12.
“She appeared visibly upset and related that she did not want to participate in an interview,” the state said.
The state argues: “The rule in Hawaii is clear — “HRE (Hawaii Rules of Evidence) 606(b) categorically bars individual jurors from impeaching a jury verdict based on any juror’s thought process in assenting or dissenting to the verdict,” according to “Lahaina Fashions v. Bank of Hawaii.”
The Alaska Supreme Court found jury misinterpretation of an instruction was insufficient to impeach the jury’s verdict in “Meyers v. State.” “That clearly written instructions may be misinterpreted by a juror is simply one of the hazards
of the jury trial process.”
It also found that evidence of misinterpretation is an inquiry into the juror’s reasoning process, and allowing such evidence would “have a crippling effect upon all trials by jury.”
Garner’s memorandum acknowledges there are
exceptions.
In “State v. Furutani,” the Hawaii Supreme Court affirmed “the trial court’s granting a motion for a new trial based on juror misconduct for bias in stating during deliberations that the defendant’s refusal to testify at trial was evidence of guilt.”
The U.S. Supreme Court found one exception
that allows for testimony
regarding a juror’s mental processes in “Pena-Rodriguez v. Colorado,” where a juror clearly states “he or she relied on racial stereotypes or animus to convict a criminal defendant.”
The state picks apart the defense’s use of its exhibits.
Two media reports of the foreperson’s statements were clearly responses to members of the press asking her to explain how the jury reached its verdict.
“This is clearly a statement about the thought processes of the jurors in reaching their verdict, and is clearly barred by HRE 606(b) and the relevant case law of this jurisdiction,” Garner wrote.
The exhibit of Juror
No. 3’s statement of his mental processes is not about statements made during deliberation and are also barred under HRE 606(b).
Abandoning the rule would “invite harassment of jurors,” “nullify the finality of verdicts,” and “stifle the freedom of jurors to share their feelings and genuinely debate in the deliberation room,” Garner argued.
“What the defendant is requesting is for the Hawaii Courts to substitute their own judgment for that of the jurors that come from the community.”
Konig’s Aug. 13 sentencing has been continued.
Judge Paul Wong will decide Aug. 14 whether to overturn the jury’s verdict and allow Konig a new trial.
