Court Overturns ’92 Conviction in Wayne Attack

A state appeals court on Thursday threw out the conviction of Dr. Thomas A. Gionis, who was accused of orchestrating an attack on his estranged wife--the daughter of actor John Wayne--and her former boyfriend during a bitter custody dispute five years ago.

Citing misconduct by a prosecutor and improper testimony by an attorney, the 4th District Court of Appeal unanimously overturned four felony convictions that resulted in a five-year prison sentence for Gionis, a wealthy orthopedic surgeon and former husband of Aissa Wayne.

Gionis had been found guilty in 1992 of hiring two henchmen to attack Wayne and her boyfriend, Roger Luby, outside Luby’s Newport Beach estate on Oct. 3, 1988. In the assault, Wayne’s limbs were bound and she was thrown face down onto a garage floor. The attackers then pistol-whipped Luby and, in an odd coup de grace , cut his Achilles’ tendons.

Justices said Superior Court Judge Theodore E. Millard improperly allowed the incriminating testimony of a family law attorney in violation of the attorney-client privilege, which requires all discussions between lawyer and client remain confidential.

On the stand, lawyer John Lueck, who represented Gionis briefly, said that about a year and a half before the attack, Gionis told him he was angry about the custody fight for his daughter Anastasia, and had made some threats regarding Wayne. Lueck testified that Gionis told him that Wayne had no idea how easy it would be for Gionis to hire someone to “take care of her.”

“It is conceivable that the attorney’s testimony indeed made the difference” and that Gionis might not have been convicted without it, the justices said.

The court, however, directed its harshest comments toward former Deputy Dist. Atty. Jeoffrey L. Robinson, whose conduct as a prosecutor has been called into question in at least two other murder cases.

The justices criticized Robinson for his “vitriolic rebuttal and personal attacks” on Bruce Cutler, Gionis’ flamboyant New York attorney, during the prosecution’s final arguments.

Robinson quoted Charles Dickens, playwright Jean Geraudoux, William Shakespeare and Danish proverbs to make the point before the jury that it is an attorney’s “duty to lie, conceal, distort, and slander everybody.”

His words alone, the court ruled, were enough to warrant a reversal in the sensational case, which was based, the justices concluded, on weak circumstantial evidence.

Robinson, reacting to the court’s criticism, said: “I did the best job that I could do. I think the man got a fair trial. Maybe my faith in the jury system is unfounded, but I think these jurors made their decision on the evidence, not on the basis of the rhetoric of a couple of lawyers.”

William Kopeny, a Santa Ana defense attorney who handled Gionis’ appeal, said he was pleased the opinion was unanimous and that the court judged the strength of the evidence against his client. The opinion was written by Justice Thomas F. Crosby Jr. with Justices David G. Sills and Henry T. Moore Jr. concurring.

“These people do not rush to reverse. I am very grateful they found the case weak enough to say the attorney’s testimony and the prosecution’s error was enough to be prejudicial.”

Gionis, 40, whose medical practice was in Pomona, could not be reached for comment Thursday. He remains free on $2-million bail. Kopeny said he advised his client not to talk with the news media until the case is over.

Dist. Atty. Michael R. Capizzi said Thursday his office will decide in the weeks ahead whether to retry the case, which has gone to trial twice since Gionis was arrested in 1989.

Wayne, who lives in Newport Beach with Anastasia and her two other children, said she was disappointed by the ruling and still believes her former husband is responsible for the attack.

“I find it appalling, incredibly appalling,” she said. “Obviously, the justices who were not there to see trial have selective vision where they only address the flaws in the prosecutor and not the flaws of Bruce Cutler. . . There is obviously some kind of jealousy about (Robinson’s) ability. Those justices are not in private practice because they can’t do it.”

Capizzi equated the court’s decision to “Monday-morning quarterbacking,” considering that the trial was hard fought by two very experienced attorneys, including Cutler, whom some have called “bombastic” and “a street-fighter” capable of dominating a courtroom. The language used by the justices to criticize Robinson was “unfortunate,” Capizzi said.

Gionis, who has been described as the overreaching and ambitious son of an immigrant plumber, was convicted of conspiracy to commit assault, assault with a firearm, assault with a deadly weapon and trespass at his second trial in 1992.

His first trial in 1991 ended in a mistrial with the jury deadlocked. In that case, a district attorney investigator was caught in major contradictions on the witness stand about what Gionis’ chauffeur had told him about telephone calls Gionis made shortly after the attack.

In overturning the conviction from the second trial, the appeals court chastised prosecutor Robinson for his comments directed at Cutler, who gained national notoriety for his defense of accused mobster John Gotti in New York.

“We have repeatedly condemned this particular prosecutor’s tactics and had done so,” the court noted, in another opinion only two weeks before Robinson made his final argument in the Gionis case.

“No theme permeated the prosecutor’s rebuttal so much as this: Defense counsel’s ordained purpose and deliberate goal was deception of the jury,” the court ruled. “This accusation was an insult to the Bar in general, and slander of this defense attorney in particular.”

The opinion then quoted the words of another appeals ruling regarding misconduct by the district attorney. “When, as here, prosecutors trample on the rights of the accused and cause the need for a new trial, the law-abiding citizen has cause for outrage. Victims must then be subjected to the humiliation of testifying again. The taxpayer must bear the expense of a new trial . . . The defendant and the taxpayers deserve better from a public servant than mean-spirited retaliation.”

Capizzi dismissed criticism of Robinson, contending that Cutler and other defense lawyers did not make formal objections to the prosecutor’s closing argument, and did not ask that his remarks be removed from the court record.

But according to the decision, Cutler made formal objections and registered his concerns about Robinson to Judge Millard in chambers, where he asked that the prosecutor toe the line in his summation. Cutler called to the judge’s attention an earlier appellate opinion scolding Robinson about his trial tactics. Millard only told the attorneys to stop the name-calling.

“You know what,” Robinson said about Cutler during the in-chambers session, “You’re a low person.”

“He attacked me personally as some kind of hired gun. It had nothing to do with the case,” Cutler said Thursday. “To me it was totally improper and the court agreed. I have seen prosecutors like this before, but this was the worst. This was particularly egregious.”

In an earlier murder trial, the same appeals court scolded Robinson for his trial tactics and prophetically warned that in a close case his conduct could result in the reversal of charges.

Last year, Robinson’s conduct was called into question again by defense attorneys who won a reversal in a murder case involving former Marine Lance Cpl. Thomas Merrill. They argued that Robinson and his investigator improperly withheld important evidence from the defense that pointed to Merrill’s innocence.

Robinson has denied any wrongdoing. The judge in the Merrill case granted a new trial after the district attorney agreed that Robinson’s investigator withheld the evidence in question.

Though testimony and a sworn affidavit of a key witness indicated that Robinson was aware of the evidence, the judge never decided either way on the prosecutor’s conduct. Robinson insists that the evidence would not have exonerated Merrill, hence he had no professional obligation to give it to the defense.

Merrill’s attorneys have now asked the 4th District Court of Appeal to throw out the conclusions of Merrill’s preliminary hearing that bound him over for trial in Superior Court. A hearing is set for Feb. 22.