NEWPORT BEACH : Gionis’ Lawyers Try to Bar New Charges

Attorneys for Dr. Thomas A. Gionis argued Thursday that it would be unfair to let prosecutors change the charges against the Pomona surgeon after his first trial in connection with the assault on his ex-wife, Aissa Wayne, ended in a hung jury.

“The (prosecutors’) amendment at this stage has the appearance of a face-saving measure,” Gionis attorney William J. Kopeny stated in court papers, noting that the evidence did not support the original charges.

Superior Court Judge Theodore E. Millard set a hearing for Thursday on the defense’s motion to block prosecutors from changing their case against Gionis. The judge also scheduled a new trial to begin June 5.

Gionis, 47, who specializes in orthopedics, was tried late last year on seven felony counts in connection with the Oct. 3, 1988, assault on Wayne, daughter of the late actor John Wayne, and her boyfriend at the time, Roger W. Luby, by two gunmen at Luby’s Newport Beach estate.

Luby’s Achilles’ tendon was cut by one of the attackers, and Wayne’s face was smashed several times into the concrete floor of Luby’s garage, where the assault occurred.

Prosecutors claim Gionis hired the gunmen through his private investigator, O. Dan Gal, because of a bitter custody feud with Wayne over their daughter, who was almost 2 years old at the time.

Three jurors in Gionis’ first trial held out for acquittal, forcing a mistrial. The jurors had taken a vote on only the first charge: conspiracy to commit an assault with a deadly weapon. The other charges were: attempting to intimidate a witness, assault with a gun, assault with a knife, two counts of false imprisonment, and residential burglary.

Deputy Dist. Atty. Christopher J. Evans now wants to change the conspiracy charge to conspiracy to commit an assault and conspiracy to commit a trespass. He reduced the other counts to two charges of assault with a deadly weapon.

Even though the new case would involve four felony counts instead of the original seven, prosecutors say Gionis could still face the same maximum prison term as before: eight years.

Jerrel Hintergardt, convicted by a separate jury as one of the gunmen in the attack, is already serving an eight-year sentence. The other admitted gunman, Jeffrey K. Bouey, is a key prosecution witness. Bouey and Gal are both still awaiting trial.

Prosecutors claim that it is not at all uncommon to alter a case after a mistrial. But Kopeny argues that it gives prosecutors an unfair advantage over the defendant.

“The (prosecution has) been able to hear the entire defense theory of the case,” Kopeny complained to the judge in his court papers. “That is simply unfair and should not be permitted.”