One Anonymous Comment Named the Verdict Before It Was Read. Now a Judge Says He Is Required to Bring That Jury Back In.

The jury was still behind a closed door. No verdict had been read, no verdict form had been handed up, and nobody outside that room was supposed to know which way twelve people were leaning. Somewhere else, on a live stream carrying the trial to a national audience, a stranger typed a sentence into a comment box.

I've been texting with one of the jurors and they're going for count three attempted manslaughter.

Count three was attempted manslaughter. That is what came back.

Dr. Gerhardt Konig is an anesthesiologist. A jury convicted him of attempted manslaughter under Hawaii's extreme mental and emotional disturbance standard, the lesser included offense sitting underneath the attempted second-degree murder count the State actually charged, over what happened to his wife Arielle Konig on the Pali Puka Trail. He is in custody with no bail. He has not been sentenced. And on August 14, in front of Judge Paul Wong, the same judge who presided over that trial, his lawyers asked the court to throw the whole verdict out.

The hearing ran two hours, gavel to gavel, no recess. One witness testified. Not a single exhibit was ever admitted. And by the end of it, the judge had ruled against what both sides asked him for, called the thing he is required to do abhorrent, said he was handcuffed by the Hawaii Supreme Court, and set a date to bring the jurors back into a courtroom and question them himself.

I want to walk you through how that happened, because the path there matters more than the headline.

WATCH THE FULL HEARING Judge Orders the Maui Doctor's Jury Back After a YouTube Comment Predicted Konig's Verdict | Pt 1

What the Jury Actually Did, and Why It Is a Problem

You cannot follow this hearing without understanding the shape of the verdict, so let me lay it out in plain language first.

The State charged attempted murder in the second degree. To convict on that, the jury had to unanimously find that Dr. Konig acted with the intent to kill his wife. That is the state of mind element, and it is not optional. Underneath that charge sat a lesser included offense: attempted manslaughter based on extreme mental and emotional disturbance, which people in the courtroom shorten to EMED. EMED is not a separate crime you can jump straight to. It is a mitigation. The theory is that the defendant did the thing with the required intent, but did it while under an extreme emotional disturbance for which there was a reasonable explanation, and that mitigation knocks the offense down a level.

The mechanics matter. Under the instructions this jury was given, they had to unanimously agree on the intent to kill first. Only after clearing that gate could they even consider whether EMED applied and drop to attempted manslaughter. If they could not agree on the intent to kill, the instructions did not send them to EMED. They sent them somewhere else entirely, down to the assault charges.

Judge Wong put it to defense counsel Thomas Otake in almost exactly those terms from the bench, and Otake agreed with the framing:

Otake's correction to that was the entire first half of his motion. If the answer was no, he told the court, "then they would have gone and considered assault, not EMED, not extreme mental and emotional disturbance."

So here is the defense's claim. After the verdict, with the trial judge's explicit permission to speak with jurors, the defense obtained a signed declaration from the jury foreperson. In it she stated that the jury did not unanimously believe Dr. Konig had an intent to kill his wife, and that she personally did not believe he had that intent or that he was guilty of attempted murder. Two jurors also gave media interviews after the verdict, and the defense pulled statements out of those too.

If any of that is true, and if a court is allowed to look at it, then the jury never cleared the gate. And a verdict returned without clearing the gate is, in Otake's phrase, an illegal verdict.

The Fight Before Anyone Was Sworn

The State knew exactly where this was going, and Deputy Prosecuting Attorney Joel Garner tried to stop it at the door.

Before a single witness took the stand, Garner asked the court to rule on the scope of Hawaii Rule of Evidence 606(b) first. Rule 606(b) is the rule that protects the jury room. In broad strokes it says that when someone challenges a verdict, a juror cannot testify about the effect anything had on their mind or emotions, and cannot testify about their mental processes. The theory behind it is old and not stupid: we hand twelve strangers the most consequential decision the state makes about a person, and then we do not go back afterward and second-guess how they got there. If we did, no verdict would ever be final and no juror would ever speak freely in that room.

Garner's position was that the rule is "very hard and fast," and that once the testimony starts, "you've basically blown the barn doors wide open."

Otake's answer was that the defense did not intend to call a single juror. Not one. All he wanted was the prosecutor's own investigator, on the stand, to confirm a narrow set of facts. The 606(b) fight could happen after, in argument, where it belonged.

He also took a shot on the way past, and it landed hard enough that the judge moved on quickly: "the public prosecutor's role is to seek justice not conviction. So if he wants to make a hyper-technical argument to block the court from considering clear statements made by the foreperson as you deal with this important motion, I guess that's his prerogative."

The court did not rule. It let the defense put on its evidence. That decision, small as it looked at the time, is what let the rest of the hearing happen.

The Defense Called the Prosecution's Own Investigator

Read that heading again, because it is the strangest fact of the hearing and almost nobody outside the room caught it. The only witness who testified in a proceeding to overturn a criminal conviction was an employee of the office defending that conviction, and he was called by the defense.

His name is Erwin Keli'i Pule'ole. He has been an investigator with the Honolulu City and County Prosecutor's Office for four years. Before he was sworn, Otake put the timeline on the record, and the timeline is the reason he was there at all.

The defense filed its motion for new trial on May 15, with the foreperson's affidavit attached. The prosecutor's office did not assign anyone to go find her until June 1, more than two weeks later. The investigator made contact on June 5. The State's opposition brief was filed on July 1, and in it the State referenced that its investigator had tried to talk to the foreperson but said the report was not yet available, so nothing about what she actually said made it into the brief. The report is dated July 2. One day after the opposition was due, and twenty-six days after the interview. It reached the defense only after their reply had already been filed.

"Had the report been generated less than 25 days after the interview and given to us prior to our reply," Otake told the court, "we could have included this in the reply, but due to the timing of it, that's why we have to proceed this way."

The direct examination lasted about two minutes and had one purpose. Otake asked whether, when the investigator interviewed the foreperson, she told him that everything on the paper she signed for the defense and everything she said to the media was true.

Yes, sir.

The State objected. It was sustained, there was a sidebar, and when the examination resumed Otake asked it again, cleanly, and got the same answer on the record. That was the whole point of putting a prosecution employee on the stand: to establish, through the State's own investigator, that the foreperson stood behind every word.

The Cross That Cut the Wrong Way

Then Garner stood up to cross-examine his own colleague, and the picture that came out is not the one the State needed.

The investigator's assignment was not to take a statement. It was to set up a future interview. He reached her by calling the district court bailiff's office, which is where she works. Not a cell phone. Not a home number. He was asked about that directly, twice, and confirmed it twice: he never called a personal line.

She told him she would have to check with her supervisor and call back. She never called back. He tried the work line again. Then on June 5 he walked across the street from his office to the district court, located her supervisor, and had the supervisor escort him to her. They met in a hallway by the elevators on the third floor, with her supervisor standing there.

She told him she did not want to talk to anybody from the prosecutor's office. She did not feel comfortable. Garner's own questions established the rest: she was visibly upset. Emotional. Crying.

And then three facts that have stayed with me since I heard them. She told him she had been ordered by the judge to speak to the media. He asked her again about that, and she repeated it. She told him people had been contacting her and her family on social media. And she told him people had been showing up at her job.

WATCH THE MOMENT Jury Foreperson Was Crying, Then People Started Showing Up At Her Job

On redirect and on the court's own follow-up, two more things came out. The investigator had never read the declaration she signed for the defense. And he never recorded the conversation. He wrote a summary from memory the same day, and that summary is the two-page report dated July 2.

When Otake got back up, he did something I want to flag, because it is the kind of thing that gets lost in a two-hour hearing. He explained on the record why he has been careful with her.

He went further. He said the case had generated national attention, that she was not the only one getting awful emails, and that his own firm had received countless of them "because this was allowed to be broadcast nationally."

I am going to sit with that one for a minute, because I am part of the ecosystem he is describing. This channel covers trials because I believe the public has a right to watch what is done in its name, and I am not walking that back. But a juror crying in a hallway because strangers found her job is a real cost, and it belongs in the honest version of this story. Hold onto it. It comes back at the end of the hearing in a way nobody expected.

The Exhibits That Were Never Ruled In

Otake moved to admit the foreperson's declaration and the exhibits attached to his motion. Garner objected item by item, and his objections were not frivolous.

Exhibit A is a TikTok video, and Garner's problem with it is that it is cut so that the question being asked of the foreperson is removed, with text overlaid on top. He said he could not find the full version anywhere. Exhibits B and C are fuller recordings of media interviews with two jurors. Exhibit D is a screenshot of the anonymous comment, and Garner went after it hard: no authentication as to who wrote it, no indication of reliability, "frankly, anonymous internet comment."

He also pushed back on the suggestion that he was being technical for the sake of it: "the requirement to authenticate evidence, the requirement for foundation is foundational, not hyper-technical. This is something that you're in your first year of law school."

Then the court made a practical observation that took the air out of the whole dispute. Those exhibits were already in the record. They were attached to the briefing. The court had already reviewed them. Garner conceded the point in one of the more honest lines of the morning: "So maybe the point is more academic."

So understand where this left things. The court never admitted a single exhibit. It agreed to consider the arguments and the attached materials for purposes of the motion, and moved to argument. If you were waiting for a dramatic evidentiary ruling, there was not one. The fight was always going to be about Rule 606(b), and everybody in the room knew it.

Not Where They End Up, But Why They End Up There

Otake's argument on 606(b) is the best piece of lawyering in the hearing, and it turns on one distinction that anybody can follow.

He started with what the rule does not say. It does not impose a blanket bar on anything a juror says after a verdict. That rule would have been easy to write. The legislature could have said a court shall not consider any comment or statement made by a juror post-verdict, full stop. It did not. What it wrote instead was narrower, and Otake read the text out loud: a juror may not testify concerning the effect of anything upon that juror's or any other juror's mind or emotions as influencing them to assent or dissent from the verdict, or concerning the juror's mental processes.

Mental processes. Otake broke that phrase down.

That last line is the whole argument compressed into eleven words. If a juror says I voted guilty, that is a result. If a juror says I voted guilty because I did not find that witness credible, that is a mental process. The first, he argued, is fair game. The second is barred, and he said flatly he was not asking the court to consider any of it. He was not asking about the DNA evidence, not asking how anyone weighed the testimony, not asking why anyone landed where they landed.

He pointed to the commentary on the rule itself, which describes it as striking a balance: excluding testimony about the internal deliberative process while allowing testimony about objective misconduct and irregularities. And he read a Hawaii decision for the proposition that Rule 606 does not foreclose judicial inquiry into irregularities affecting the integrity of a verdict.

Then he made the constitutional turn. Read the rule the State's way, he argued, and a rule of evidence starts overriding the right to a unanimous verdict and the right to due process, which is not something a rule of evidence gets to do. "Rules can't trump the Constitution," he said, "but you don't need to do that. You interpret it the way the plain language says and it can all work together."

He closed the section with a challenge. If the rule blocks what the defense is asking the court to consider, then what is left that it allows? "That means you can't consider anything. And so clearly the rule allows you to consider some things."

Page Seventeen

Then he picked up the State's own opposition brief, and the hearing changed temperature.

Page 17. The State's words, in a document the State filed with this court:

Otake walked through what those statements say. Statement 1 is that she was the foreperson. Statement 3 is that the jury did not unanimously believe Dr. Konig had an intent to kill his wife. Statement 4, which he read into the record in full, is this: "I did not believe that Dr. Konig had an intent to kill his wife during the incident on the Pali Puka Trail, and I believe he was not guilty of attempted murder."

The State, in writing, said the court can properly consider those under 606(b).

"And at first I thought, is that a typo?" Otake told the court. "And then I read what's before and after, and it's clearly not a typo."

His conclusion followed in one step. If the court can consider that the jury was not unanimous on the intent to kill, and can consider that the foreperson herself did not believe he was guilty of attempted murder, then the gate was never cleared, and "the verdict just cannot stand. It just can't."

WATCH THE MOMENT Defense Reads The State's Own Filing Back To The Judge

He also gave the court a hypothetical that I have not been able to shake. Imagine a defendant facing life without parole. The verdict comes back guilty. The foreperson walks out of the courtroom into the cameras, unprompted, and says yeah, at the end of it six of us thought he was guilty and six of us thought he was not, but we returned the verdict of guilty anyway.

"I have a hard time believing that our appellate courts would let that stand," he said. "That would be absurd. And that's essentially what they're asking you to do. Maybe not to that extreme, but pretty close."

And he was careful, repeatedly, not to blame the twelve people who sat through that trial. "Jurors are human. I'm not faulting them." The instructions are genuinely complicated, he said, even for lawyers. "Mistakes happen. Misunderstandings happen. And that's not a failure of the system. What's a failure of the system is when we learn about that, if we don't take steps to correct it."

Count Three

The second half of the motion is the comment, and it is where the case stops being a fight about evidence rules and starts being about something worse.

During deliberations, before any verdict was returned, a commenter on one of the live streams wrote: I've been texting with one of the jurors and they're going for count three attempted manslaughter.

Otake pulled four separate threads out of that one sentence.

First, the phrasing. Not I heard, not I think. "I've been texting with." Present perfect. It implies an ongoing exchange, more than one message.

Second, the word count. Nobody in that courtroom ever referred to anything as a count. "Nobody said there's the count, the lessors is count two, count three. Nobody said that." But in the media interviews after the verdict, one of the jurors did use that word, saying they went through all of the counts. So the vocabulary of the jury room shows up in a comment written by someone who was not in the jury room.

Third, the number. The verdict form did not label its options as counts. But the third option on it was extreme mental and emotional disturbance manslaughter. Otake told the court he does not believe the verdict form was even publicly accessible at that point. "So some guy, wherever he was, somewhere on the mainland, would have never known that count three was extreme mental, emotional disturbance, or at least the third option of the verdict form. But he used that term."

Fourth, and simplest: he was right.

"It would be an incredible coincidence," Otake said, "if somebody prior to the verdict used the term count when nobody in this trial used it, and then the jurors used it, that they would know that it was the third option on the verdict form, and that they would know and accurately predict the verdict."

WATCH THE MOMENT An Anonymous Commenter Predicted The Verdict Before It Was Public

Then he laid down the law that goes with it, and this is the part of the hearing that ended up controlling the ruling.

Remmer v. United States, from the United States Supreme Court: private communications with jurors during trial concerning matters before the jury are presumptively prejudicial, and the burden rests heavily on the government to establish harmlessness. Hawaii's own Supreme Court in State v. Furutani, 76 Hawaii 172: once a defendant makes a prima facie showing that an improper influence may have affected the jury, prejudice is presumed, and the State must establish beyond a reasonable doubt that the misconduct did not affect the defendant's substantial rights.

A prima facie showing, for anyone who has not heard the term, is a low bar. It means you have put enough on the table that the issue has to be dealt with, not that you have proved anything. Otake made that point himself: it is a standard used more often in civil cases, and it is "fairly low."

So if the defense cleared that low bar, the burden moved. And Otake's next question was the loudest thing said in that courtroom all morning.

He built it out. The prosecutor's office has full-time investigators, and everyone in the room had just watched one of them testify. They are law enforcement officers with subpoena power. They can get search warrants. If they believed someone tampered with a juror, that is potentially a crime, and they could take it to a grand jury. And during the original trial, the State had put on a forensic IT witness who testified for roughly a day. That person could have been asked to look at a username, at IP addresses, at anything.

"Call your investigator. Tell us what you did to figure this out, because I would assume you'd want to figure this out."

Then, after a pause, the line that people are going to be quoting:

He closed by reading the jury instructions back to the judge who gave them. Page two: you must follow these instructions even if you disagree with them. Page sixteen: a person is not guilty unless the State proves the required state of mind for each element. And page forty-three, one of the last instructions this jury heard before they went home each night: you must not discuss this case with anyone or permit anyone to discuss this case with you, and you must not reveal how the jury stands, numerically or otherwise, until you have reached a unanimous verdict.

"Do jurors need to follow the law in your courtroom? Of course they do."

The Judge Starts Asking His Own Questions

Before the State ever got up, Judge Wong started pressing the defense, and his questions told you exactly what he was worried about.

He asked whether the defense's theory was simply that this jury misunderstood the instructions or ignored them. Otake said it is more useful in reverse: given what we now know, there is no way they reach that verdict if they followed the instructions.

Then the judge went where judges go. "Can you imagine other jurors have not made the same mistake?" Is there a decision anywhere setting aside a verdict on this basis? "I can't be the first judge that is tasked with making this unpleasant decision. I'm wondering what other judges..."

Otake's answer was the sharpest thing he said all day, and it is the kind of point that never occurs to you until someone says it out loud. If this had happened before, and a trial judge had granted the motion, and there was no appeal, there would be no appellate opinion for anyone to find. Silence in the case law does not mean it never happened. It might mean it was handled correctly.

"I can tell you I've never seen it happen before," he said. He has done more than a hundred jury trials over twenty years. "So it's not going to open up the floodgates." And then the framing he came back to twice: "the consequences of getting something right is not a reason to get it wrong."

Judge Wong pushed once more, on whether this is a question of first impression better left to the Hawaii Supreme Court. Otake disagreed on the record, and the judge said plainly he was not suggesting it. But the exchange told you where his head was. He was looking for permission to not be the one who does this.

You Do Not Believe in Jury Trials

Garner's argument, when it came, was a real argument, and the coverage that treats this as a one-sided hearing is not doing it justice.

He started by answering the judge's question directly: there is a large body of case law on exactly this, and he had briefed it. Hawaii, the Ninth Circuit, other states. A Hawaii case where a juror raised mid-trial that he did not understand the proceedings, and the trial judge questioned him about it. A Ninth Circuit case where the court noted the instructions had been read, the jury knew how to send communication forms and did send them, and never asked a clarifying question. And the Alaska Supreme Court, which he quoted for the proposition that clearly written instructions being misinterpreted by a juror is "simply one of the hazards," and that inquiring into the misinterpretation is an inquiry into the juror's mental process, which 606(b) forbids.

Then he made his best point, and it is a good one. Look at how these statements came into existence. Two jurors sat down with reporters and were asked how they reached their verdict. On the second exhibit, the foreperson was asked directly: how did you get to manslaughter, or why manslaughter. And that is when she started to explain.

He also caught the defense's own reply brief describing its motion as relying on the portion of the statements "that identified the jury's determination underlying the verdict." Underlying, he said. The reasons for how they got there. That is the mental process by the defense's own description.

On the page 17 concession, Garner did not pretend he had not written it. He explained it, and the explanation is narrow but coherent. Statement 4 is entirely in the past tense. There is no time attached to it. He does not know whether the foreperson is describing what she believed before deliberations, during them, or after they ended. If it describes her mental state during deliberations, it is inadmissible. He cannot say that, because he cannot assign more meaning than the words carry. So yes, the court can consider it. It simply has no relevance, because there is nothing to anchor it in time. He said the same about statement 3.

And she is not there to be asked. "Not here to face cross-examination about the circumstances of this, not here to face cross-examination about who prepared this for her, whether she understood it, whether she had legal representation, what statements were made to her in the process of signing this."

Then polling. When this jury returned its verdict, the court polled them, and every juror said under oath that they agreed with the verdict as read. Garner called that the speak now or forever hold your peace moment, and it is exactly what polling is for. Whatever the foreperson said to a camera weeks later, she said something else, under oath, in that courtroom, with everyone watching.

His closing was the broadest thing said all morning, and it is the argument the State is really making:

WATCH THE MOMENT The State's Case For Secrecy: You Do Not Believe In Jury Trials

He warned about the chilling effect on future juries in high-profile cases, where any juror would know their verdict could be attacked and their thinking dragged into open court. He distinguished Remmer on the facts, and the distinction is real: in Remmer the contact was known, the juror reported it, and the FBI investigated and wrote a report. Here there is an anonymous comment and nothing else. Nobody has identified the poster. Nobody has confirmed any juror was ever contacted.

"Anybody can say anything they want on the internet, Your Honor."

And on the substance of the comment itself, he made a point worth sitting with: read it on its face and there is nothing in it about anyone discussing the case with a juror, persuading a juror, or trying to move a vote. At most it describes someone leaking which way the jury was going. That is not the same thing as influence.

The Question That Turned the Hearing

Then Judge Wong asked the question that decided the case, and he asked it of the State.

He had been circling it. He noted that case law does allow the shield to be pierced to determine whether there was outside influence, and that 606(b) does not prevent that. He said there is authority placing a duty on the court itself to examine and investigate where there is credible interference or credible communication with a jury during deliberations. He wanted to know how strict that bar is.

Then he put it as plainly as it can be put:

Garner's answer: "I think that's up to the court. If you want to investigate and bring in the jurors, I know that has been done." He said it is unfortunately in the court's discretion, but it is in the court's power. And then the sentence that turned out to be the hinge of the entire hearing: "I didn't see anything in my research that said it's a requirement."

The judge had already read State v. Chin. He asked Garner about it. Garner said he had not briefed Chin for this motion and did not have it in front of him.

That is the moment. The State told the trial judge the inquiry was discretionary. The trial judge had a 2015 Hawaii Supreme Court case open in front of him that says otherwise.

Abhorrent

Judge Wong ruled from the bench, and he did not rule on 606(b), and he did not rule on the motion.

He said he was concerned about the exception to the bar, the one that allows jurors to be examined on the existence of outside influence. He noted that Remmer has been taken up and used by the Hawaii Supreme Court on this exact issue. Then he read State v. Chin, 135 Hawaii 437, a 2015 case that cites Remmer: where the existence of an outside influence such as juror misconduct is brought to the attention of the trial court, the court must ascertain the extent of the influence and then, in its own discretion, take appropriate measures to assure a fair trial.

He read further, that the outside influence need not touch directly on guilt or innocence to trigger the presumption of prejudice, and that it is enough that during the crucial period of deliberations there was a private communication bearing even remotely on the trial.

Then he said this:

He turned to the room and asked whether anybody objected or thought he was misreading it.

Both sides objected. For opposite reasons.

Otake said there is enough on the record to grant the motion outright, without questioning anyone. His reading of Chin, which he put on the record later, is that it tells a court it cannot deny a motion like this without further inquiry, but says nothing about granting one. He argued the presumption of prejudice from Furutani had already attached, the State had done nothing to rebut it, and it is not the court's job "to go through this exercise to try and save the state's verdict."

Garner repeated that the defense never made a prima facie case. "You can't make a prima facie case for a statement made by a person without identifying the person." But then he stepped back: "I agree that it would be uncomfortable to bring in the jurors to ask them these questions. I'm not in support of it... If that's the court's reading of the case law, that it's necessary and required, then I won't stand in the way."

Judge Wong went back to the text one more time, working out loud: "It's almost as if the requirement is not discretionary." He read the section of Chin on the court's duty to investigate, the part saying that where juror misconduct presents a potential for substantial prejudice to a defendant's right to a fair trial, there is a rebuttable presumption of prejudice and the trial judge is bound to further investigate the totality of circumstances surrounding the outside influence.

WATCH THE RULING Judge Calls It Abhorrent, Then Does It Anyway

He laid out the shape of it. The court itself will do the questioning. First question: was there outside communication during jury deliberations. If the answer is yes, he probes further into the totality of the circumstances, to determine whether it affected the defendant's right to an impartial jury.

"And this is the objection of both of the parties. This is what is required of the court, unfortunately."

What Otake Put on the Record

Otake was not done, and what he said next is the part I keep coming back to.

He objected to the process on the record and gave his reasons in a stack. Four to five months have passed since the verdict. The prohibition on these jurors reading the news ended when the trial ended, and nobody knows what they have seen since. The case has been heavily publicized.

And then: "some of them might be watching the Zoom right now, you know. I mean, I wouldn't doubt it, right?"

Think about what that means. The court is going to bring twelve people back in to ask whether they were exposed to outside information about this case, and the hearing where that was ordered was itself streamed to the public, and some of the people who are going to be asked may have been watching it happen.

He raised the legal problems too, and they are not small. These are private citizens who will be asked, in a public setting, whether they committed misconduct. Should they have counsel? Do they have immunity? "I would suggest that it's probably unlikely that a juror is going to come in here on their oath and admit to not following the court's rules and laws." And if they all say no, what has the court actually learned? "I just don't see how that then becomes a reliable basis for this court to then say, well, they all said nobody did it."

His alternative was the same one he had been arguing all morning. The State has resources. There is a username. There are IP addresses. There was a forensic IT witness who testified for a day at trial. "Maybe ask him to go look into it, right? But that's their burden."

He also made a point about who this rule protects, and it is the argument I would want made if it were me. Dr. Konig is a doctor with private counsel. "But what about indigent defendants and things like that? We're supposed to, what, go hire IT guys and investigators and track all this stuff down? No, that's why they situate it to where the burden is on the state to do those things once the prima facie showing is made." Whatever you think of this defendant, that principle does not belong only to people who can afford it.

Then the last thing, and the reason speed matters here at all: "Dr. Konig is sitting in jail." No bail. If the motion is denied, the defense wants to move fast to sentencing so they can appeal fast. If it is granted, they want the second trial as soon as possible. "So whatever the court decides to do, we just ask that we do it as quickly as possible."

Where This Leaves the Case

The scheduling took ten minutes and it was not clean, because Garner has a civil trial starting August 31 in another courtroom with no off days, and everything before that runs into somebody's calendar. They landed on Friday, September 11, at 9:30 in the morning.

Before then: Otake briefs the process and parameters for questioning the jurors, including a possible request to do it in camera or under seal, by roughly August 21. The State responds by August 28. The court confirmed its current intention is that the court alone will examine the jurors, and only on the contact.

Otake asked for the briefing to cover more than mechanics. What are the jurors told about why they are there? Should they be asked whether they watched the August 14 hearing? Whether they read the motions? What they have seen since the trial ended? He called it a can of worms, and he is right.

And Judge Wong reserved ruling on everything else. The 606(b) scope fight, the unanimity argument, the motion itself. All of it waits until the record is complete.

So here is where it actually stands. Dr. Konig's conviction has not been vacated. Not one exhibit was admitted. The judge did not adopt the defense's reading of Rule 606(b), and his questions from the bench read like a man who is deeply skeptical about unwinding a verdict on the strength of media interviews and a signed declaration. The State's core position, that the jury was polled under oath and every one of them said yes, is still standing and still unanswered.

What the defense won is procedural, and it is not nothing. Judge Wong cannot deny this motion on the papers anymore. Before he rules, he has to bring the jurors back and ask them, himself, whether anyone on the outside got to them. That is now a legal obligation he has stated on the record, over his own objection, over the defense's objection, and over the State's.

Which means the September 11 hearing is where this case is actually decided. Twelve people who thought they were finished with this in April are going to be asked, one at a time, in front of a judge, whether they did something they were expressly instructed not to do.

I do not know what they will say. I do know that a hearing nobody in the room wanted is going to happen because a stranger, somewhere, typed three words that nobody in that courtroom had ever used out loud.

Count three.

THE SHORT VERSION The Maui Hike Attack | New Trial Hearing Top Moments