Hawaii Doc Gerhardt Konig's Appeal, Ebony Parker Case Dismissed - ＂The MK True Crime Show＂ with Dave Aronberg, Phil Holloway, and Ashleigh Merchant
00:04:25.420And so she testified, you know, she testified that he tried to inject her with a syringe after beating her on the head, you know, gave pretty powerful testimony, enough that the jury, you know, voted to convict him.
00:04:35.760And I think we've got her actual testimony at SOT, too.0.99
00:04:39.260You know, I'm screaming and I'm saying, what the fuck are you doing?1.00
00:09:29.120You make it in a jury room when you're in a situation
00:09:31.160where you're talking with your fellow jurors.
00:09:33.080And a lot of people have second decisions on that,
00:09:36.780particularly when they hear about what the sentence is.
00:09:40.160You know, especially states that have mandatory minimums,
00:09:43.120jurors aren't allowed to know about the mandatory minimums
00:09:45.500when they're voting for guilt or innocence.
00:09:47.560And then after they convict and they find out what the mandatory minimum is, a lot of them are horrified and said, you know, if I had known that this person was going to get life, you know, for example, I would never have voted to convict.
00:09:58.380But I think the lawyers are smart here.
00:10:00.160The appeal is saying that the court that they're trying to give the court the opportunity to prevent an unjust result.
00:10:06.220And they're trying to wedge in this jurors confusion to say it's an unjust result.
00:10:11.700And so the trial court does have broad discretion to do that.
00:10:14.300I don't think it's likely to win here, because we don't like to overturn verdicts once a jury
00:10:19.160speaks. But they are trying their best at this. And they're arguing that juror instructions can
00:10:24.900be complex, they can be confusing, and misunderstandings happen. The problem is,
00:10:29.580and that's one of the reasons I spend so much time arguing jury charges and the law to jurors,
00:10:34.280I know it gets boring, and I always warn my jurors, I'm sorry, but I don't want to end up
00:10:38.840in a situation where a juror is doing something like this and saying, you know, I voted for it,
00:11:12.440But, you know, we thank you for your service, your jurors, and you do have First Amendment rights, but you can then undo everything after that.
00:11:20.020And then, of course, you can get the clerk of court to try to fix the case, and that's even worse.
00:11:24.620And have a book deal, and then they go to prison, and, you know, you can't make this stuff up.
00:11:30.360Now, just before we go on to Abby's Warner, I do want to mention something.
00:11:34.220I don't understand how the jurors, and I respect jurors, but I understand how they didn't think there was an intent to kill.
00:11:39.860he researched a cliff where they could walk which was the most dangerous cliff where it was the
00:11:45.960narrowest area where she could fall off and then he told her to take a selfie like at the edge of
00:11:50.800the cliff yeah and when she wouldn't he got furious at her and then started hitting her with a rock
00:11:55.540i completely agree with you dave okay so this to me is a case of all or nothing either he was
00:12:01.600trying to kill her he wasn't he wasn't trying to hurt her he wasn't trying to threaten her he wasn't
00:12:04.640trying to harm her he was trying to kill her or he wasn't it was either an accident or it wasn't
00:12:09.000I mean, I'm with you. I don't think this is really one of those issues that they really argued. It
00:12:12.800sounds like a juror is just having second thoughts now because they've seen, you know, all the
00:12:16.780coverage. They probably learned something that they didn't learn during trial. And that I wanted
00:12:20.300to point out. One of the big reasons that we don't let jurors impeach the verdict, you know, undo the
00:12:25.040verdict, is because once they leave that jury room, they're subject to a lot of information that they
00:12:29.860didn't have in the jury room. And there's reasons they didn't have it. There's certain evidence
00:12:33.860that's not reliable. And so a judge actually has to keep that evidence out. You know, if there's
00:12:38.280things that are illegally obtained, statements that are uncorroborated, things that are unreliable,
00:12:43.440doesn't go in the jury room. So they made that decision when they had all that information,
00:12:47.260and now they're having hindsight, but perhaps they read a comment that influenced them. Perhaps
00:12:51.740they heard an argument, a new argument. That's not fair because that's not something that was
00:12:55.340actually decided in that courtroom. So I really don't think we're going to see this go a whole
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00:14:10.680But we have, like you mentioned, Dave, another really interesting case.
00:14:14.660This is out of Newport News, Virginia.
00:14:17.120The elementary school teacher, Abbey's Warner, she was shot by a six-year-old in her class
00:16:08.440That person who was actually run over, they get no justice in civil court.
00:16:12.160They get no money because the person is then charged criminally.
00:16:15.520So it's always this tough walking a line. Do you want to have a civil case? Do you want to have a criminal case? And like we see here, a lot of times the government tries to do all of it because they have different motivations.
00:16:27.560The government who's deciding to prosecute, they're trying to think about future dangerousness, things like that. And then you've got the civil justice, which is about making the person whole.
00:16:35.040So they're different analysis and different reasons.
00:16:37.760And that's what we've seen in this case.
00:16:39.340So, you know, we've got Parker, who she was alleged to have received multiple reports
00:16:44.540that were known to be credible that this student was armed.
00:16:47.800So apparently she knew or should have known that this student was armed.
00:16:51.600Parker pulled a teacher to search the backpack, but didn't actually search the backpack until
00:16:57.520the mother arrived at school, was waiting to search the backpack.
00:17:00.220And that's when this shooting happened.
00:18:00.320But in the case of Ebony Parker, the judge just said, no, there won't be a trial because we're going to dismiss it in advance, which is rare, but it happens.
00:18:12.340And I think if you ask the victim here, Ms. Werner, if she could choose between winning the $10 million in the civil trial or get Ms. Parker convicted and sentenced to prison, 100 out of 100 times she would rather have the $10 million.
00:18:39.600She didn't get $40 million, but $10 million is a good judgment if she can collect it from insurance and so forth.
00:18:47.240But you asked a question about the case.
00:18:50.540Before we get to it, I want to play Sot 4 because we want to see how the judge dismissed the charges,
00:18:56.420and then we'll talk about it on the other side.
00:18:58.480Those legal theories do not fit the plain meaning of the statute.
00:19:03.140If they are up to amount to a crime, then the legislature will need to codify it.
00:19:09.600Therefore, I do grant defense motion to strike in hold on all counts, all eight counts of felony child abuse and endangerment under indictment CR, the indictment number 24999-541-01 through 08.
00:19:33.780I want to add, my ruling today is based upon legal principles only.
00:19:39.600Now, it is inappropriate for me to give my personal thoughts or express sympathy or concern,
00:19:46.060but it's understanding what happened that day was awful, that they agreed upon by all.
00:19:51.860The criminal matter before me does not call for me to discuss the Newport News School system
00:19:56.860or make political observations, and I will not comment on optics or engage in speculation.
00:20:03.860Ashley, you had asked me a question about, as a prosecutor,
00:20:07.180How tough is it to prosecute someone other than the parents for child neglect when you have a child who's not your child come to school with a gun?
00:20:15.580And we have tried this now multiple times, and each time it has failed.
00:20:19.140You've seen it, Scott Peterson, in the Marjory Stelman-Douglas case.
00:20:22.640He was the school law enforcement, the resource officer, who did not run into the building.
00:20:27.020They charged him with criminal child neglect, but they said, you know, it's weird.
00:20:30.680You're charging a cop for child neglect, and it's not really the right charge, child abuse.
00:20:35.800You have to have some sort of duty, being a parent, or to actually be convicted of such a charge.
00:20:41.900And we've seen parents, like the parent in this case.
00:20:43.800So he was acquitted. He was found not guilty.
00:20:46.600Now, you also saw in Uvalde, Texas, similar charges.
00:20:50.240And there, too, you saw a not guilty verdict.
00:20:53.940And so here, I'm not that surprised that, again, you see a judge say,
00:20:59.680not only are we not going to let this go to a jury, we're going to end it right now.
00:21:05.000so it won't even be a trial. We're not even going to have a trial because you can't find someone
00:21:10.080under these facts guilty of child neglect, child abuse. As a prosecutor, I wish we could,
00:21:16.520but that seal has not been broken yet. Right. That's up to the legislature if they want to
00:21:20.560criminalize that. But, you know, and I agree with you. And it's interesting. And I want to talk for
00:21:24.660a minute about how this result came about, you know, how this trial came about, because I think0.97
00:21:29.180it's important when we talk about our next case up, Mackenzie Shrilla, who had what's called a
00:21:34.020bench trial. So in this case, so this case, Ebony Parker, you know, she was charged with these0.79
00:21:38.220felonies. She went to trial. In the opening statements, they had, you know, they started
00:21:43.500with the trial. And the prosecutor said that Parker was the only person with authority and
00:21:48.320knowledge of this armed student so that she's the person that could have intervened before the
00:21:52.660shooting happened. The defense said, well, if she was held liable, so should every other staff
00:21:56.980member. But what happened after the prosecution presented their witnesses, before the defense
00:22:02.320started presenting their witnesses, they asked the judge to dismiss the charges. And that's the
00:22:07.200thought you all just saw where the judge said, you know, I don't think that there was a crime
00:22:10.740committed here. And the judge made the tough decision saying, I don't think this can go to
00:22:15.040a jury. And the reason I want to highlight that for our viewers is when I watched, you know,
00:22:19.320I watched the Netflix documentary, The Crash, and I saw her have a bench trial. And we talk about
00:22:23.800that a lot on this, you know, on this show, people maybe waive their rights to a jury trial and have
00:22:27.440a bench trial. This is a really good illustration of why I always say, don't ever do that.
00:22:32.320And, yeah, I mean, and this is it because you've got a judge that is willing to get the charges dismissed.
00:22:39.280Even if you have a jury trial, the judge can always dismiss the charges.
00:22:42.520So why would you waive that jury trial when you have a situation like you have here where the judge actually is the one that dismisses it?
00:22:50.500It is the most embarrassing thing for a prosecutor when they come back to my office and say, I just got JOA'd because it almost never happens.
00:23:08.760But the standard, it's really hard, and it's rare.
00:23:11.740You've got to show that the state didn't even put it on what's called a prima facie case, which means it doesn't—you didn't—like, what you presented, even if it's true, doesn't convict someone.
00:29:17.920i think that's the million dollar question but just to catch everyone up 17 year old1.00
00:29:26.820mackenzie shrilla she drove into a brick building at almost 100 miles per hour killing
00:29:31.780two passengers, her boyfriend, Dominic Russo, Dom, and also a friend, Davion Flanagan, who
00:29:38.300one was 20 and one was 19. She went to trial, she waived her jury trial and had a bench trial,
00:29:43.620and the judge found her guilty on numerous charges, including two counts of aggravated
00:29:47.920vehicular homicide. The judge, and we'll listen in just a minute, the judge highlighted that she
00:29:52.700didn't believe the act was reckless, but she thought it was a mission of death. So let's
00:29:56.800listen to the portions of her ruling while we show the video of the moments before the crash.1.00
00:30:01.780She morphs from a responsible driver to literal hell on wheels as she makes her way down the street. Mackenzie alone made the decision to drive the car, to drive an obscure route, a route she visited a few days before. She had a mission, and she executed it with precision. The mission was death.
00:30:22.540so samantha i mean i watched it i actually watched it it was riveting and let's just say
00:30:33.760that the defendant here mr rilla does not come across very sympathetically but the only people
00:30:39.300who seem to come across worse are her parents especially her father so i have so many questions
00:30:44.540for you because you're you're an expert on this matter just what do you first off what do you
00:30:48.600think happened? I mean, in my mind, it was she and her boyfriend got in another fight and she went
00:30:54.240crazy and had a death wish, because I can't imagine that she tried to kill them without0.84
00:30:59.260knowing that it would be likely that she would die too. So is that what you think happened or0.94
00:31:03.880something else? Yeah, I mean, so Mackenzie, from a clinical perspective, has what we know to be0.96
00:31:11.600a borderline personality disorder and it's pretty obvious self-evidence and so while yes she
00:31:22.480absolutely in my opinion was in a rage I think it was facilitated by fears of losing Dominic
00:31:30.080but also anger that was overwhelming her that morning because of Davion as well which is
00:31:39.560another conversation that most people haven't really touched upon yet. But also McKinsey was
00:31:45.760an avid marijuana smoker. And while most of us think it's a pretty harmless drug
00:31:50.360for a person with this underlying personality disposition and the amount that she had been
00:31:57.360smoking, my guess is she was in a form of withdrawal because she had stopped within 24
00:32:03.900hours of the accident. So I think it was, yes, what you're saying, but there's more to it than
00:32:10.040that. That's interesting. So when we saw at the end of the documentary, for those who haven't
00:32:15.440seen it yet, you know, Mackenzie is interviewed and it becomes clear at the very end that she's
00:32:20.240got a lawyer in the room. You don't see the lawyer, but the lawyer's back in the corner.
00:32:23.260And I can't help but think that the lawyer was there and, you know, drug there and didn't want
00:32:26.540to be there. But you see her turn back to him or her and, you know, make sure that she did a good
00:32:34.280job. She says, I just want to make sure that I'm big on the no intent. There is no intent whatsoever
00:32:38.920and I have excessive amounts of remorse and it's not intentional and I'll do everything I can to
00:32:43.220prove that. It's almost like that's sort of scripted. You know, I know that you've said in
00:32:48.760your analysis before that you believe that she was acutely aware of the public sentiment about
00:32:53.060her and that she's doing the documentary because she doesn't want people to think she's a monster
00:32:56.720is that um you know that section where she's looking back to her lawyer and making sure that
00:33:01.660everything she did everything okay and i did okay is that what your reaction is to that moment0.92
00:33:06.640you know you have to also understand that the sharilla parents her parents uh do not allow
00:33:15.180mackenzie to take responsibility for herself and you know most of my career i've worked with young0.55
00:33:20.300adults and adolescents and a lot of families and a lot of parents. Most parents want you to help
00:33:26.380their child to learn to take responsibility. That's what they're asking of you as a clinical
00:33:31.020professional. Mackenzie's family does exactly the opposite. They will not allow her to be
00:33:37.660responsible for anything she says or does. Because this, you know, from my view, this was predictable.
00:33:44.300This accident could have been avoided long before, and she was on a very predictable course that was bound to end this way or in a similar way.
00:33:57.040Yeah. Dave and I were talking about that at a break. I mean, I have an 18-year-old that just graduated high school, and I was immediately, both of us agreed, I mean, the parent, what the hell?
00:34:07.540you know, what are the parents doing? I mean, yeah, like what, I mean, what's, yeah, what's
00:34:11.840wrong? So you've done a linguistics analysis of, you know, of the parents. Can you tell us about
00:34:16.940that? Oh yeah. Yeah. I mean, you know, when you have somebody who starts threatening suicide,
00:34:23.120the way that Mackenzie did going back to, certainly we know freshman, sophomore year
00:34:29.040in high school, probably middle school, these tantrums, these anger outbursts, rage outbursts,
00:34:36.340really. And she would threaten suicide. That was the go-to threat. Now, when you have a child
00:34:41.580that's go-to threat suicide, you start to learn as a parent to get into a pattern of just appease
00:34:48.300them. You don't want to make them feel bad about themselves. And that pattern of appeasing and lack
00:34:54.260never allowing her to take responsibility. I mean, this is the inevitable outcome when you have a
00:34:59.780borderline personality disorder and a child who was in the midst of a pretty severe substance use
00:40:20.240So I want to talk a little bit about her life in prison.
00:40:23.180So apparently she's had a girlfriend in prison
00:40:25.720that her girlfriend, they've now broken up.
00:40:29.040Does it surprise you at all, your analysis of her,
00:40:32.240that she would be building these types of relationships
00:40:34.080behind bars no no no i mean she's gonna have many of these types of relationships um you know
00:40:42.020until she can find one that ultimately she can hold hostage uh you know and i hate to say it
00:40:48.380that way because it sounds but that is what it is i mean the feeling you know i think unfortunately
00:40:53.000dom was empathic he was a sweet guy and he you know he was being held hostage by mckenzie yeah
00:41:01.580Well, Samantha, Ashley and I were talking off air. Ashley made a very astute observation. She saw a scale at Dom's house and noted that Dom didn't really have any job, although they said he was a crypto trader and he bought McKenzie a lot of gifts and he was living pretty well. Was he a drug dealer?
00:41:18.620yeah of course yeah i mean i mean you know to me i think he obviously was there was scales in the
00:41:26.000car um but i think he had a lot of aspirations he was very stressed about money actually in the
00:41:32.740months just before this um you know so he felt like he needed to take care of his family members
00:41:37.760was very very close family the russo family so you know i think he felt the weight of other
00:41:43.460people's pain and suffering in a very real way. And that's how Mackenzie kind of got her claws in
00:41:50.500him. He wanted to help her. I mean, he tried to get her to go to a therapist. He tried to even
00:41:56.280say, let's go together. We'll go together to get help. I mean, he knew more than I think anyone
00:42:01.780what the deal was with her. It was really interesting to see. Yeah, if I could follow
00:42:08.680up on that. Also, Ashley and I were a little surprised that any parent would allow their
00:42:13.34017-year-old daughter to live with a 20-year-old drug dealer. I mean, she was still in high school
00:42:18.020at the time. And so she leaves the house while she's 17 to live with her older boyfriend who's
00:42:23.040a drug dealer. Is that something that struck you as unusual? You know, when you, I mean,
00:42:28.840her parents were buying her alcohol. They were giving her money for drugs. Anything they could0.86
00:42:34.020do to keep her from escalating like the police had been there because of her tantrums when she
00:42:39.880was a sophomore in high school um you know her tantrums were so extreme she'd break stuff i'm
00:42:46.340gonna kill myself like she was so out of control so reckless uh so intense that i think her family
00:42:53.340just learned like give her whatever she wants try to keep the peace and they saw dom as you know
00:42:59.220like he loved her. He really did try to take care of her. I don't think anybody understood
00:43:03.860the ins and outs of that relationship, but I'm sure the family was also just happy to
00:43:07.720not have her in their crosshairs day in and day out. Right. To have her with somebody
00:43:13.200they trusted and, you know, didn't have to, you know, didn't have to be worrying about
00:43:19.020her night and day. Having said that, though, I'm not so sure she was living there. So I
00:43:24.120know we've heard that, but based on the language, uh, it seems like she had stayed there quite a
00:43:30.540bit, but that whether she was actually living there at the time is, you know, she wasn't actually
00:43:37.740technically living there. That's how I would say it. Interesting. So she told, so that, you know,
00:43:44.020she's had prison girlfriends and things like that. And she's told different inmates, different
00:43:47.440things. She's told some that the crash happened because she was high on mushrooms. And then she
00:43:51.020told Cheyenne her ex that it was because of POTS and we saw in the documentary her mom saying it
00:43:55.400was because of POTS you know this nervous system disorder that causes dizziness fatigue things like
00:44:00.640that and apparently she was diagnosed with that do you think she really believed that it was about
00:44:04.660POTS or do you think she even knows what she's talking about at this point? Mackenzie? Yeah. No
00:44:10.360Mackenzie knows exactly Mackenzie knows what happened. You think she's trying to create this1.00
00:44:15.400narrative there with pots like that she knows it's a lie yeah yes yeah yeah i mean in the very1.00
00:44:20.760first moments you know they have this gypsy language the her and her mom will speak right0.52
00:44:25.720and the very first moments after the police show up to talk to her and they're speaking in this
00:44:31.240gypsy language and she says can i just tell them i had a seizure uh you know so that was from the
00:44:37.080jump what the plan was and they took it and ran with it um you know the way that amnesia works
00:44:43.240it's not unusual to have amnesia from a crash, but you don't get amnesia in such a way where
00:44:49.900you remember everything up through to the turn and then everything immediately following the
00:44:56.320accident, but not the four seconds between the turn and hitting the wall, right? I mean,
00:45:03.100it's just, it's silliness is what it is. Yeah. What do you think about that use of gibberish?
00:45:10.160what's wrong with this family? I mean, and has the family had any accountability,
00:45:17.820repercussion, responsibility? I mean, have they been in any trouble for being just
00:45:22.320delinquent parents here? I mean, what's going on with these folks?
00:45:25.580I think it's surprising to them. I really, I mean, you know, mom is interesting. She's a
00:45:30.520fascinating character. Sometimes she just says things to Mackenzie to try to appease her that1.00
00:45:35.600she doesn't believe. And again, this is from listening to hours and hours of their jail calls.
00:45:40.160Other times, you know, she does seem to feed into the narrative that, you know, it's not her fault.
00:45:46.320I mean, they still blame the accident, to be very clear, on the Russo family.1.00
00:45:59.840I mean, this is the narrative that mom is sort of feeding Mackenzie.
00:46:03.680So, you know, this is – they – I think mom is a little delusional herself, is really hoping that she can start like a free Mackenzie movement.
00:46:15.700You know, I don't think they have anybody telling them the truth, frankly.
00:46:20.320Well, yeah, and there's – you know, some of the jail calls have actually been released.
00:46:23.200I know we've got one we can play in a minute, SOT9.
00:46:25.400But, you know, it's between Mackenzie and her mom, and they were recorded, and they're – it's just – it's kind of disturbing if we could play SOT9.
00:46:31.460And then I'm really curious, you know, how you think that fits into all of this.
00:46:35.760So wait, it's all over the world now that today shows like national news.
00:46:39.460Okay. I got to tell you one more thing.
00:49:23.540telling you that you can't get in trouble so just to hold everything he always told me that he always
00:49:27.680had me hold everything i know that's because you were a minor so yeah there's multiple texts also
00:49:34.200that have surfaced that apparently her parents mckenzie's parents were well aware and they
00:49:37.840weren't apparently concerned with this drug use her alcohol use i mean if you looked at her social
00:49:42.380media you could see it so she's 17 she's living with an adult male and if we do the math right
00:49:49.220when they started dating because they'd been dating for four years she would have been 13 and
00:49:52.520he would have been 16. So how do you think that that situation was allowed to develop with the
00:49:59.340Shrillas knowing that their minor daughter was engaged in all these activities? I mean,0.95
00:50:04.360dangerous activities with apparently no pushback at all. You know, this is just, this is insane to
00:50:10.860me. I mean, how do you think that factored into all of this, you know, everything that's happened?
00:50:15.860You know, when they tried, you know, so for example, there was an incident where they tried
00:50:20.960to ground Mackenzie when she was a sophomore. And the police wound up at their house because
00:50:26.380she was breaking things and screaming, and you can't do this to me. I mean, just a complete
00:50:31.380tantrum. You add suicidal threats, that ends any debate pretty fast. They just wanted to try to
00:50:42.800get her through it, to try to appease her. You can even hear it in these calls with mom.
00:50:49.100As soon as Mackenzie escalates, she tries to say anything she can to bring her, she calls it anxiety. Mom calls her tantrums, anxiety, down a notch. And so what do you do in that situation?
00:51:05.800And, you know, as a professional, those are moments that, you know, you don't you don't feed that.
00:51:11.960I mean, you don't appease it because that's what will cause it to get reinforced and then grow.
00:51:16.520But they didn't get help. And I think she was just really, truly out of control.
00:51:21.320I mean, she was really a monster. And I hate to say that. Right.0.95
00:51:25.840As a mental health professional, especially, I don't like using that language.0.69
00:51:29.000But she was really out of control, fighting with neighbors, with teachers, with other students, you know,1.00
00:53:48.860And for my closing statement, I want to add a postscript to the Blake Lively and Justin Baldoni case.
00:53:56.740That's settled before the world could gawk at the latest embarrassing celebrity trial.
00:54:02.320Eight figures in legal fees later, they settled for exactly zero dollars.
00:54:08.140They even put out a joint statement claiming the whole multi-million dollar spectacle was actually about raising awareness, whatever that means.
00:54:16.480talk about an expensive public relations campaign.
00:54:20.200Now, you may think that a walk-away settlement means nobody won,