A court hearing scheduled for Thursday could decide whether the Orange County District Attorney’s Office is kicked off a high-profile rape case against a Newport Beach surgeon and his girlfriend.

The judge, Gregory W. Jones of Orange County Superior Court, has already rejected an effort by DA Todd Spitzer to dismiss the charges against Grant Robicheaux and Cerissa Riley. In his June ruling, the judge said Spitzer 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.

Now, Jones is deciding whether to remove the entire DA’s Office from the case and transfer it to state prosecutors under the California Attorney General. He’s scheduled to hold a hearing on it at 9 a.m. Thursday.

The judge has already signaled he doesn’t trust the DA’s Office to continue with the case.

“I think the public’s confidence in justice being pursued on this case would be seriously undermined if the Orange County District Attorney’s Office continues on this matter,” Jones said in court on June 5, according to a transcript of a hearing that day.

“It’s the court’s obligation to ensure the integrity of all prosecutions,” he added, citing state law.

Thursday’s hearing is scheduled to be live-streamed by the court via YouTube at this link, starting at 9 a.m. or a few minutes after. The court now has rules limiting the public and press from attending in-person court proceedings amid the coronavirus pandemic.

Spitzer’s spokeswoman didn’t return a phone message seeking comment, nor did Robicheaux’s defense attorney, Philip Cohen.

The criminal case, filed in September 2018 under previous DA Tony Rackauckas, alleged a host of felony crimes by Robicheaux and Riley, including kidnapping and sexually assaulting seven women. Prosecutors alleged the couple would meet women at parties and bars, incapacitate them with date-rape drugs, and then rape them at Robicheaux’s apartment.

In a 2018 news conference, Rackauckas alleged more than 1,000 photos and videos showed Robicheaux and Riley sexually assaulting dozens of women. The pair have pleaded not guilty, saying their encounters were consensual.

After Jones rejected the DA’s effort to drop the case, Cohen tried to get Jones removed as the judge presiding over the matter, citing a private meeting between Jones and Matt Murphy, a former prosecutor who represents the alleged victims in the case. But Cohen’s motion was rejected by Los Angeles County Superior Court Judge Samantha Jessner, who kept Jones on the case.

In a newer filing in Jones’ court, Cohen argued Jones doesn’t have legal authority to remove the DA’s Office from the case on his own.

“Because [Penal Code] 1424 is inapplicable to this matter, the court has no authority to recuse. The court’s attempt to remove the District Attorney’s Office from this matter is contrary to the law and must not be countenanced,” Cohen wrote in the filing last week.

Murphy, the lawyer for the alleged victims, has called on the court to disqualify the DA’s Office and filed a formal motion asking Jones to do so.

“Mr. Spitzer’s sustained efforts, both surreptitiously and overtly, to destroy the efficacy of this prosecution manifest an unmitigated and unprecedented inability to be fair,” Murphy wrote in a late June court filing.

“These women have rights. These rights have been, and continue to be, audaciously ignored by the defense, and disgracefully disregarded by the District Attorney’s Office. We pray for this court to end this.”

A California State Bar ethics rule does not allow former prosecutors to represent clients on cases they participated in, unless the DA’s office gives permission. It also bans former prosecutors from representing clients on cases where they learned confidential information as a prosecutor.

Murphy, who retired from the DA’s office last year and went into private practice, says the rule doesn’t apply to his representation of the alleged victims because when he was a prosecutor he never had anything to do with the Robicheaux case.

“I was never assigned to this case, I never appeared on it, I never had anything to do with it,” Murphy said.

At the time Rackauckas’ administration filed the charges against Robicheaux and Riley, 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 Jones, who issued a lengthy ruling on June 5 refusing to dismiss the case.

“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 added, 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 Jones’ ruling, Spitzer said in June that his office requested the dismissal of the charges after an exhaustive review of the evidence showed 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 in June. “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’ June ruling. “My sworn duty is to pursue justice and ensure that the rights of victims and defendants are protected.”

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

Since you've made it this far,

You are obviously connected to your community and value good journalism. As an independent and local nonprofit, our news is accessible to all, regardless of what they can afford. Our newsroom centers on Orange County’s civic and cultural life, not ad-driven clickbait. Our reporters hold powerful interests accountable to protect your quality of life. But it’s not free to produce. It depends on donors like you.

BREAKING TEXT ALERTS

Subscribe today to receive Voice of OC’s breaking news text messages (free beyond your standard messaging rates).

Join the conversation: In lieu of comments, we encourage readers to engage with us across a variety of mediums. Join our Facebook discussion. Message us via our website or staff page. Send us a secure tip. Share your thoughts in a community opinion piece.