State Lawyers Seek Gionis Case Review : Law: Request disputes alleged judicial error, prosecutorial misconduct cited in last ruling.

State lawyers on Monday asked the California Supreme Court to review a lower court’s decision reversing the convictions of Dr. Thomas A. Gionis, who was found guilty of orchestrating an attack on the daughter of actor John Wayne during a bitter child custody battle.

In a 26-page document filed in San Diego, the state attorney general’s office disputed an alleged judicial error and alleged prosecutorial misconduct in the case, and stressed evidence of Gionis’ guilt in the Oct. 3, 1988, attack on Aissa Wayne and her boyfriend, Roger Luby.

The 4th District Court of Appeal in Santa Ana overturned the 1992 convictions last month, finding that the trial judge improperly allowed incriminating testimony from a family law attorney who once represented Gionis.

The appellate court also took former prosecutor Jeoffrey L. Robinson to task for his “vitriolic rebuttal and personal attacks” on Gionis’ defense attorney Bruce Cutler, who is known for his flamboyant style and his defense of New York mobster John Gotti.

In asking the state’s highest court to accept the case, attorneys for the state said the appellate court’s 3-0 decision undermines the independence of the judge who presided over the trial and has created several novel legal issues worthy of review.

“It is a denial of basic fairness to permit a prosecutor to be publicly condemned and a conviction reversed without an avenue of review for an abuse of discretion,” according to the state’s petition.

Gionis’ defense attorney, William J. Kopeny, said he had not yet reviewed the documents but wants the high court to reject the request based on evidence of misconduct.

“This was a very weak case,” Kopeny said, adding that the lack of evidence highlights the need for the dismissal.

The attorney general’s request is the latest legal step in one of the more unusual, and sensational, cases ever to be heard in Orange County Superior Court.

A first trial for Gionis, an orthopedic surgeon, ended in a mistrial. During a second trial in 1992, he was convicted of four felony counts stemming from the shocking attack on Wayne and Luby outside Luby’s Newport Beach estate. Gionis was sentenced to five years in prison.

Wayne was tied up and thrown face first onto a garage floor, causing head injuries. The two attackers pistol-whipped Luby and slashed his Achilles’ tendons before fleeing.

Prosecutors alleged Gionis hired the attackers to get revenge on his estranged wife in the midst of a heated custody dispute over their young daughter, Anastasia.

The defense appealed, and in a Feb. 18 decision the appellate court--in a rare move--overturned the convictions.

Robinson told jurors in closing arguments that it is a defense attorney’s “duty to lie, conceal, distort and slander everybody.”

The appellate court, which had criticized Robinson’s trial tactics in the past, ruled that the prosecutor’s comments alone were grounds for a reversal in a case based on weak circumstantial evidence.

The attorney general’s office contended in court documents that the testimony by attorney John Lueck, who testified that Gionis made threatening remarks about Wayne, did not violate attorney-client privileges since Lueck made it clear he would not represent Gionis. The attorney general also noted that the trial judge ruled the statements did not violate attorney-client privileges.

In reasoning their dismissal, the appellate court justices ruled it was possible that Lueck’s testimony sealed the jury’s guilty verdicts.

Robinson’s statements regarding Cutler were also proper, given Cutler’s conduct during the trial, according to state prosecutors.

“Despite overwhelming evidence of guilt, the appellate court reversed a conviction for prosecutorial misconduct, which it alone concluded existed,” state prosecutors stated in court records. “If a defense counsel chose to engage in histrionics in defense of his client, the prosecution should be permitted to note the tactic and diffuse the effect on the jury.”