ORANGE COUNTY, Calif. - A judge refused Friday to dismiss charges against a Newport Beach surgeon and his girlfriend, who are accused of drugging and sexually assaulting multiple women, and set a hearing for next Friday to consider whether the District Attorney's Office should be kicked off the case.
"The public's confidence pursuing justice would be severely undermined if the District Attorney continues on the matter," Orange County Superior Court Judge Gregory Jones said.
Jones added that it was his "obligation to ensure integrity of all prosecutions," but that no one has filed a motion to recuse the District Attorney, which is seeking dismissal of the case against Dr. Grant Robicheaux, 39, and Cerissa Riley, 32.
If the District Attorney's Office is recused, then the case would be assigned to the state Attorney General's Office, which could keep the case or assign it to a special prosecutor.
"This is a great day for victims of crimes," said attorney Michael Fell, who represents one of the alleged victims in the case. "It shows that Marsy's Law is alive, that Marsy's Law is respected, and that victims are able to have their voices heard."
Defense attorney Philip Cohen demanded a preliminary hearing, but Jones noted that the defense has waived its right to a speedy preliminary hearing multiple times in the case, so the standard now is to schedule it in a "reasonable time" period, not within 60 days of charges being filed.
In February, Jones said he needed more time to consider a request by prosecutors to drop charges against Robicheaux and Riley. Attorneys for the alleged victims want Jones to assign the case to the Attorney General.
Prosecutors filed a brief, saying they do not take the request to dismiss the case "lightly" and "are acutely aware of the gravity of this request and the pain it may cause the alleged victims." But they argue "the evidence, in this case, falls short of the level needed to meet the people's constitutionally required burden of proof of each and every element of the crimes beyond a reasonable doubt."
Prosecutors say in the brief that the couple "engaged in a swinger lifestyle and openly pursued scores of women for consensual sexual encounters."
It's a sharp contrast from when prosecutors filed charges in the case, as the two were characterized as alleged sexual predators who used their good looks to lure unsuspecting women before drugging and raping the victims in the doctor's Newport Beach home.
Prosecutors now say that some of the alleged victims have told investigators at times that they had consensual sex with the two. One alleged victim has a "history of manufacturing events and a documented instance of giving false information," prosecutors said.
Another snorted about 15 lines of cocaine that she was aware was "laced with ketamine" before waking up to a nude Robicheaux "spooning her," prosecutors allege. She refused to undergo a sexual assault exam, prosecutors said.
Charges were filed when Tony Rackauckas was the county's district attorney, and it became a heated political issue during the 2018 election as current District Attorney Todd Spitzer criticized Rackauckas' handling of the case.
Spitzer initially backed prosecutors on the case after he was sworn in, but he grew more concerned as evidence came out of civil litigation in which an alleged victim is suing the doctor and his girlfriend.
Spitzer contends that Rackauckas and his former chief of staff used the case for publicity during his re-election bid, prompting the D.A. to ask the Attorney General's Office to consider taking over the case as he felt it had become too politicized in his office.
The Attorney General's Office said any conflict was cured by Spitzer's election and declined to take over the case.
Spitzer then reassigned two new prosecutors to the case whose sole job was going over all of the evidence. That review convinced Spitzer that he did not have evidence to proceed further, and he asked Jones to dismiss charges.
Spitzer faces fierce opposition from attorneys representing the alleged victims in the case.
Matt Murphy, a former prosecutor in Spitzer's homicide unit who represents four of the women, accused Spitzer of continuing throughout the case of making "critical decisions colored by raw personal animus and naked political calculation," according to his legal brief opposing the dismissal of charges.
Murphy added, "He has removed the assigned prosecutor in favor of less-experienced counsel; he has terminated employment of the lead investigator, Jennifer Kearns, and then effectively stymied the ongoing investigation by failing to assign a new investigator; he announced his intention to dismiss the case without notifying the victims, and he denigrated the integrity of at least two of these women on national television, without first having met them to assess their credibility; he has tearfully, publicly apologized to the defendants; and he has advanced the motion to dismiss in an effort to shield himself from public criticism, making it impossible for the victims to either defend themselves or to address this court."
Murphy argues that there is enough evidence to continue forward with the case, including the amount of Gamma Hydroxybutyrate, the date rape drug, found in Robicheaux's home. Police recovered 119 grams of GHB, Murphy said.
Murphy also blasted Philip Cohen, one of the defense attorneys, for courtroom hyperbole and accused him of mischaracterizing the GHB evidence. He also accused Cohen of badgering one alleged victim and her family to the point of making a false gas leak report to "smoke the occupants out of the home" and serve the victim in the civil case.
"This harassment continues to this day," Murphy said.
Murphy charges that Spitzer's "hatred for Tony Rackauckas is so extreme, and his need to hide his own incompetence and unethical behavior on this case is so pressing, that Mr. Spitzer's professional judgment has become irrevocably skewed."
Murphy also accuses Spitzer of working with defense attorneys to leak sensitive information, such as Rackauckas depositions in the civil case, to embarrass his predecessor.