A judge on Thursday removed the Orange County District Attorney’s Office from a high-profile rape case against a Newport Beach surgeon and his girlfriend, saying it needs to proceed despite efforts by DA Todd Spitzer to drop all of the charges.

Orange County Superior Court Judge Gregory W. Jones said he was ordering prosecutors to hand over their entire case file to the state Attorney General’s Office so it could prosecute the case against Grant Robicheaux and Cerissa Riley. The pair face multiple felony charges, including kidnapping and sexually assaulting seven women.

“It would be impossible for the District Attorney’s Office to prosecute this case in an ethical fashion,” when they described it as a “manufactured case,” Jones said, adding the DA’s Office is now “hopelessly conflicted.”

“It’s obviously an extremely old case, and it needs to proceed,” the judge said.

In response to the ruling, Spitzer said his decision to try to drop the case was based on a review by prosecutors that found the case couldn’t be proven beyond a reasonable doubt. 

“I am confident that the state Attorney General’s Office will resolve this case in a fair and just manner,” Spitzer said in a statement Thursday.

“I referred this case to the Attorney General’s office in September 2019 because of my concerns of the possible perception that this case had been tainted by politics even before it was filed. When the Attorney General ordered my office to keep the case, it was then and only then that a complete re-evaluation of the case revealed a lack of evidence to prove the case beyond a reasonable doubt,” he added.

“Without sufficient evidence to prove the filed charges beyond a reasonable doubt, the Orange County District Attorney’s Office is ethically prohibited from moving forward with this prosecution.”

Attorney General Xavier Becerra’s office said it would “review the matter,” and declined to answer further questions, including whether it plans to prosecute the case.

Jones also raised concerns that Spitzer’s administration never talked with the victims before trying to drop the charges in February, nor gave them advance notice of the plans to do so.

Jones said this may have violated California’s victim’s rights protections under Marsy’s Law, legislation for which Spitzer led the campaign in 2008.

“Marsy’s Law, if not violated specifically, [was] certainly undermined by Mr. Spitzer’s office,” Jones said from the bench on Thursday.

Spitzer’s spokeswoman disputed the judge’s characterization.

“We notified the victims shortly before the press conference and we offered to meet with all the victims before we officially made the request to the court to dismiss,” said Kimberly Edds.

“We met with several victims and both victims’ attorneys on behalf of their clients.”

The criminal case, filed in September 2018 under previous DA Tony Rackauckas, alleged Robicheaux and Riley would meet women at parties and bars, incapacitate them with date-rape drugs, and then rape them at Robicheaux’s apartment. The pair have pleaded not guilty, saying their encounters were consensual.

In a 2018 news conference, Rackauckas alleged more than 1,000 photos and videos showed the couple sexually assaulting dozens of women.

Spitzer’s office said a review by prosecutors last year found those allegations to be false.

“In fact there was not one video or picture that depicted an unconscious woman being sexually assaulted by the defendants,” Spitzer’s office said in its statement Thursday.

In June, Jones rejected an effort by Spitzer’s administration to dismiss the charges, saying the DA was attempting a “back room” dropping of the case without giving clear reasons or an opportunity for the alleged victims to be heard.

Spitzer’s office has rejected that characterization, saying prosecutors requested the case be dropped only after an exhaustive review of the evidence showed guilt couldn’t be proven beyond a reasonable doubt.

In 2015, when an Orange County judge transferred another high-profile DA case to the state, then-Atty. Gen. Kamala Harris’ administration sided with the DA’s office in objecting to taking the case.

Harris’ office appealed the decision, which had kicked the DA’s Office off of prosecuting the deadliest mass killing in Orange County history, the 2011 Seal Beach salon shooting.

But the AG’s office lost the appeal, with justices upholding the lower court’s finding that prosecutors systematically withheld evidence and violated defendants’ rights. 

On the Newport Beach case, prosecutors said in court Thursday they agreed they had a conflict that prevented them from ethically prosecuting the case, because they had sought to dismiss it.

“The OCDA agrees it has an irreconcilable conflict” given the court has rejected the DA’s motion to dismiss the case, said Senior Deputy District Attorney Richard Zimmer. At the same time, he said the DA’s Office believes there is insufficient evidence to prove the case beyond a reasonable doubt.

Robicheaux’s defense attorney, Philip Cohen, argued in court Thursday that the judge had no authority under state law to transfer the case to the Attorney General unless the defense makes the request or the defendant’s rights are in jeopardy if the DA’s office stays on the case.

Cohen emphasized court precedent that judges can recuse DAs “when there was a conflict of interest with the DA that might prejudice him against the accused.”

“Against the accused,” he emphasized.

Jones disagreed that the court’s authority is that narrow, pointing to code sections he said give courts broad authority to ensure the integrity of the justice system, and to appoint new prosecutors when existing ones fail to perform their duties.

“This court has the authority to recuse and disqualify the local district attorney if it feels there are facts to support that,” Jones said.

Cohen said he was preparing to appeal Thursday’s decision, using the legal term for this type of appeal.

“This is going to be taken up on a writ,” Cohen told the judge.

Nick Gerda covers county government for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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