A judge has issued a strong rebuke of Orange County District Attorney Todd Spitzer’s attempt to drop rape charges in a high-profile case against a Newport Beach surgeon and his girlfriend, calling it an effort at a “back room dismissal by prosecutors without the alleged victims ever having the opportunity to be heard.”
The case, filed in 2018 under previous DA Tony Rackauckas, alleged a host of felony crimes by Grant Robicheaux and Cerissa Riley, including kidnapping and sexually assaulting seven women.
At the time, Spitzer was running against Rackauckas and criticized the then-DA as timing the charges to help his election campaign by waiting months to file them just before the November 2018 election. Then, about a year after being sworn in as DA, Spitzer announced this February that the evidence was problematic and that he would seek to have the charges dropped.
That argument didn’t fly with Judge Gregory W. Jones, who issued a lengthy ruling last week refusing to dismiss the case and setting a hearing for tomorrow on whether to transfer it from the DA to the state Attorney General.
“The political aspirations of District Attorneys, past and present, and their thirst for media attention, have created a minefield of legal hazards in this case,” Jones ruled.
“The political actions of Mr. Spitzer have also been problematic,” the judge ruled, saying Spitzer had previously vouched for the criminal evidence in the case when in 2018 he handed out to the press copies of a sworn search warrant application with police reports about the alleged assaults.
“By implication Mr. Spitzer was vouching for the accuracy and truth of the allegations summarized in these Newport Beach Police reports. He now has reversed field and disavowed these reports. The reasons given for this turnabout are unclear. The factual allegations supporting [criminal] Counts 3-7 have not changed,” Jones added in his ruling.
“The public has heard from the politicians. The public has never heard from the alleged victims. Any objective analysis of this case leads to the conclusion that these charges should be put before a jury. A back room dismissal by prosecutors without the alleged victims ever having the opportunity to be heard is contrary to the core values of our legal process, and the interests of the public.”
In response to the ruling, Spitzer said his office requested the charges be dismissed after an exhaustive review of the evidence showed that the case couldn’t be proven.
The “three-month complete case re-evaluation” included “a review of thousands of photographs, tens of thousands of text messages, hundreds of hours of audio recordings, and thousands of pages of transcripts of interviews with alleged victim interviews, witness interviews, and depositions,” the DA’s office said in a statement. “A complete review of the evidence had not been done by the prior District Attorney administration,” it added
Spitzer’s office said the state Attorney General declined to take over the case in September 2019, “after Spitzer declared a conflict due to the possible perception that this case had been tainted by politics.”
“We have represented to the Court on multiple occasions that we do not have the evidence to prove this case beyond a reasonable doubt, and therefore we cannot legally, ethically, and morally proceed with the prosecution of this case,” Spitzer said in a statement about Jones’ ruling. “My sworn duty is to pursue justice and ensure that the rights of victims and defendants are protected.”
“This was the first time all of the evidence was reviewed,” Spitzer said in his statement.
“The results of that review were unequivocal – we lack the evidence necessary to prove these charges beyond a reasonable doubt in a court of law. As a career-long advocate for victims’ rights and given the facts that our thorough reevaluation revealed, it pains me that the further review– which I requested from the state Attorney General almost a year ago – will only delay this process for the victims in this case and force them to endure further trauma.”
DA officials said they plan to file a formal response Thursday to the court ruling, ahead of Friday’s hearing.
[Click here to read Spitzer’s September 2019 letter asking the Attorney General to take over the case due to an alleged mishandling of the case by Rackauckas, and the AG officials’ response that they are “confident” the DA’s office is “fully capable” of fairly prosecuting the case.]
The judge said he was skeptical of Spitzer’s request to drop the case, after mentioning no such evidence problems in his letter to the Attorney General a few months earlier.
“The Court finds it significant that Mr. Spitzer apparently did not tell the Attorney General this case could not be proven when he asked them to take over the prosecution,” Jones wrote in his ruling.
“Mr. Spitzer had been involved with this case for three months as a candidate, and nine months as District Attorney, when he wrote his letter to the Attorney General. He certainly was familiar with the evidence. On his media webpage as of March 31, 2020, he still had a lengthy summary of the facts and charges. If the case was terminally ill, as now alleged, why give it to the Attorney General, who would then waste thousands of dollars and countless man hours prosecuting an unprovable case.”
Rackauckas, the former district attorney whose administration originally filed the case, said he agrees the victims deserve to be heard.
“I think the important interest here is for the victims, and for them to be able to have their day in court,” Rackauckas told Voice of OC in an interview.
“As I’ve said since this motion to dismiss began, how do you ignore all of the statements of the victims and just say they don’t amount to anything, and all these different women independently making these statements – and some of them quite similar – as to what happened with respect to Robicheaux and Riley. As well as the date rape [drug] found in their residence…it all amounts to very strong evidence that he and Riley were doing the things that they were accused of.”
Mario Mainero, a Chapman University law professor, said that Spitzer might be right about the evidence, but that it would be better if an outside prosecutor handles the case, particularly a special prosecutor.
“The fact that Todd, during the campaign, criticized Tony about how he handled this case, the fact that somebody tried to go after Todd on a civil contempt matter that got thrown out – all of this gives it a political aura,” said Mainero, who represented Spitzer in the contempt lawsuit, in which a victim accused Spitzer of violating court rules by handing out the search warrant in 2018.
“It seems to me that the best way to assure the public and the victims that the right thing is being done – whatever that right thing is – is to have a special prosecutor evaluate the evidence, in light of a prosecutor’s ethical duty to only purse matters where there is probable cause that a jury could convict beyond reasonable doubt.” Mainero said.
A special prosecutor “might be more efficient, and it might get done more quickly” than the Attorney General’s office, he added.
“[The] AG’s office, including very much this one – AG [Xavier] Becerra – tend to be a little bit political at times. But the point here is simply, somebody independent needs to look at the evidence and evaluate it,” Mainero said.
“I think either one is fine,” Mainero said of having the Attorney General or a special prosecutor take over the case.
“Todd might be right. None of us know because none of us are examining the evidence. But somebody who has no stake in it…needs to take a look at this, in order to give assurance to the public.”
Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at firstname.lastname@example.org.