Mistrial Is Declared in Gionis Case

SANTA ANA —  A mistrial was declared Thursday when Superior Court jurors could not decide if Dr. Thomas A. Gionis ordered the assault on his ex-wife--daughter of the late actor John Wayne--and her Newport Beach boyfriend during a bitter child custody battle in 1988.

Deputy Dist. Atty. Christopher J. Evans said afterward that with nine of the 12 jurors having voted to convict Gionis of conspiracy, he intends to prosecute the Pomona orthopedic surgeon again on the eight felony counts related to the assault. A hearing to determine a new trial date was set for Jan. 24.

Gionis’ response upon learning of the jury deadlock was: “It shows I am still innocent.”

Prosecutors contend that Gionis wanted to “teach a lesson” to his ex-wife, Aissa Wayne, on the eve of a custody trial over their daughter, Anastasia, who was almost 2 at the time.

The three holdout jurors all said the prosecution’s case was tripped up when a district attorney’s investigator was forced to admit from the witness stand that “it looked like” he had perjured himself about a critical piece of evidence related to the doctor’s whereabouts shortly before the assault.

“(The investigator’s testimony) was a disaster,” said Sharron Cooley of Anaheim, one of the three jurors who voted for acquittal. “Had (his) information been accurate, it would have been a very easy case.”

However, one of the jurors who voted to convict Gionis blamed the mistrial on “just a couple of opinionated people” who “threw reason out the window.” The juror declined to give her name.

Wayne, 34, and financier Roger W. Luby, 54, were attacked by two gunmen in the garage of Luby’s walled estate in Newport Beach on the morning of Oct. 3, 1988, shortly after they returned from an exercise class. Wayne’s face was smashed into the concrete floor, Luby was struck with a gun, his right Achilles’ tendon was slashed with a knife and the couple was left handcuffed.

The two gunmen and Gionis’ private investigator in the custody dispute, O. Daniel Gal, have admitted their roles in the assault. But Gionis’ defense was that Gal must have ordered the attack without the doctor’s knowledge.

Gionis was charged with conspiracy, three counts of assault with a deadly weapon, two counts of false imprisonment, burglary and intimidation of a witness.

In voting, jurors said they did not get past the first count of conspiracy. Superior Court Judge Theodore E. Millard had instructed them that unless they found the doctor was part of the conspiracy, the other counts were moot.

The jurors, who deliberated five days, sent a note to the judge early Thursday stating that they were hopelessly deadlocked. When the judge questioned each juror, one of the three holdouts, Diane Brown of Cypress, seemed uncertain that the panel was hung. The judge sent them back into the jury room, but within an hour they returned with Brown agreeing that further deliberations would be useless.

According to trial testimony, Gionis, 37, had hired Gal, 34, in March, 1988, to spy on his ex-wife to gain evidence that she was not spending much time with their child. Wayne had temporary custody at that point, pending a trial over permanent custody.

The following August, Gionis, his sister, Xanthi, and Gal rented a Learjet and flew to Sedona, Ariz., to take surveillance photos of Wayne, who had taken the little girl on a vacation in apparent violation of the temporary custody order.

Those pictures helped Gionis win permanent custody of the girl, which he lost after his arrest in connection with the assault.

Prosecutors contend that it was the Sedona trip that upset Gionis to the point that he wanted to retaliate against Wayne. It was immediately after that, prosecutors charge, that Gionis and Gal put a plan in motion to hire two others to scare his former wife.

Key to the prosecution’s case were telephone records showing a pattern of calls between Gal and Gionis, and Gal and the two gunmen.

But at least part of that theory began to unravel, according to the holdout jurors, when the testimony of a district attorney’s investigator was riddled by the defense.

One of the gunmen, Jeffrey K. Bouey, had testified that he and accomplice Jerrel Hintergardt were gathered with Gal in front of Luby’s estate shortly before the assault. Bouey said that when Gal hung up from a conversation on his car phone, the private investigator declared: “That was the client. He’s upset. He wants this done now, because his court case is coming up soon.”

Prosecutors showed that Gal had made three telephone calls at about that time--two to Gionis’ limousine car phone and one to the doctor’s house.

Prosecutors then called district attorney’s investigator Robert Davis to the stand. Davis testified that Gionis’ limousine driver told him during a telephone interview that the doctor was in the limousine at the time that Gal made the first two calls.

But during cross-examination, defense attorney John D. Barnett produced a tape recording that the driver had secretly made during the Davis interview. The tape, played in court, showed that the limousine driver never said anything about the doctor being in the limousine that morning.

Further, the defense put on other witnesses who were in the limousine that morning to verify that the doctor was not present. The limousine driver had taken Gionis’ mother and a friend to Newport Beach to pick up the doctor’s daughter for his thrice-weekly visitation.

Then the defense put on its two most important witnesses: A patient of Gionis, and the patient’s wife, who testified that the doctor was treating the man for a back injury in his Upland clinic at the time all the critical phone calls were made by Gal to Gionis’ limo and home. The patient’s wife said it was impossible for her to have the date wrong, because she had to miss her bowling league that day to drive her husband to Gionis’ office.

“Davis placed Gionis in the car at the time of the phone call. There was evidence that (Gionis) wasn’t,” holdout juror Cooley said.

Prosecutor Evans, admittedly battered by Davis’ collapse as a credible witness, argued to jurors that other telephone records showing calls between Gionis’ and Gal’s phones--both before the assault and immediately afterward--demonstrated a pattern that proves it was the doctor who ordered the assault.

Coupled with that, Evans presented evidence that Gionis’ payments to Gal for his surveillance of Wayne skyrocketed just shortly before the attack. Several jurors who voted that Gionis was guilty singled out that escalation in pay as a key fact.

Gionis attorney Barnett said the deadlocked vote by the jury shows “that 12 people couldn’t decide. . . . I don’t think this weakens our position. . . . Dr. Gionis was not guilty before the trial and he’s still not guilty.”

The three jurors who voted for acquittal said prosecutor Evans might have helped his case if he had called Gal to the witness stand to testify himself who was behind the assault. Gal is cooperating with authorities, but Evans made a tactical decision not to call him, apparently because prosecutors did not want to plea-bargain with him.

Hintergardt, 38, is already serving an eight-year sentence after his conviction on the assault charges at a separate trial. Gal and Bouey are awaiting trial.

Bouey is expected to be allowed to plea-bargain because of his cooperation with the authorities. He has testified against both Gionis and Hintergardt. Wayne and Luby both told jurors that it was Hintergardt who carried out the actual assaults.

Wayne continues to have custody of the little girl, but the doctor, who is free on $250,000 bail, has liberal visitation rights.

THE HEAVIES

O. Daniel Gal, a Century City private investigator, said Gionis paid him $67,000 to follow Wayne and then hire the two gunmen accused in the attack. Gal, 34, still faces trial but is cooperating with prosectors and testified against Gionis.

Jerrel L. Hintergardt, 39, of Burbank, gave a stunning confession in May, saying he was paid $3,500 for taking part in the assault. Now serving an 8-year-prison term, he said he “never meant for anyone to get hurt, but things just got out of control.”

Jeffrey K. Bouey, 37, of Simi Valley, admitted being paid $2,000 for his role in the assault and is plea-bargaining with prosecutors. He testified that Gal told him Gionis ordered the attack “because his (child custody) court case is coming up.”

THE TRIAL

Defense attorney John D. Barnett called Gionis’ chief accuser, Gal, “a knothead who doesn’t have all his oars in the water.” In a courtroom surprise, the lawyer produced a tape-recording that made it appear a district attorney investigator had lied under oath.

Prosecutor Christopher J. Evans maintained that Gionis had a motive for wanting his ex-wife hurt--he was losing his custody battle over the couple’s daughter. Evans admitted that his case was damaged by the conflicting testimony exposed by Barnett, but pledged to re-try Gionis.

Superior Court Judge Theodore E. Millard declared a mistrial after jurors told him they were unable to reach a unanimous verdict, with nine believing that Gionis is guilty and three believing he is innocent. The judge will meet with lawyers Jan. 24 and set a new trial date.