Chapter 10: Hanging Chads

CHAPTER 10—HANGING CHADS

Justine Harman: A listener’s note: This series includes descriptions of violence, sexual assault, and grooming. It is not recommended for young audiences. The People v. Robicheaux and Riley is an ongoing case. At the time of this episode’s original air date, the defendants had not been convicted of any crimes alleged against them.

From Justine Harman and audiochuck, this is O.C. Swingers, chapter ten: Hanging Chads.

After Mike Fell’s pronouncement that the defense has never actually claimed Grant and Cerissa’s innocence…

Mike Fell: His job is to distract everybody from the facts of the case. But the reason we’ve never heard is that “my client didn’t do it.”

Judge Bromberg: Wow, wow, wow, wow. Hang on. Time out Why would you even bring that up?

Justine Harman: Grant’s defense attorney Philip Cohen bit his tongue. Just kidding.

Philip Cohen: May I?

Judge Bromberg: Go ahead [laughing]

Philip Cohen: Thank you. Despite the part’s invitation, I don’t like to interrupt. I am happy to have a discussion of the facts of this case at any time the court wants on the record with this entire audience.

Judge Bromberg: Why would I want to do that now?

Justine Harman: Judge Bromberg is like, Fellas. For the final time, this is a pre-trial hearing. We were summoned here today to discuss the Kearns memo and that in-camera hearing I already told you was no big deal—

Judge Bromberg: It’s harmless.

Justine Harman: Legit, why are you still talking about all this other nonsense?

Judge Bromberg: We have not started a court trial today, have we?

Philip Cohen: No

Judge Bromberg: All right. Everybody knows that.

Philip Cohen: Yes.

Judge Bromberg: My job is to listen to the facts of what you folks are talking about that are being raised. Pretrial, pre-preliminary hearing, make determinations on that. Um, it’s, it’s not for the court to pontificate—and I’m not suggesting that anybody here has pontificated cause no one has—but understand that it’s not for this court to listen to the facts of this case. I know what the alleged facts are. I have read the alleged facts I read Judge Jones’ 25-page ruling to deny the dismissal of his case, where he outlined everything. I have read the 73-page police report. I have listened to audios. I’ve had this case for two, two and a half weeks. I’m getting there. So let’s understand if, if I need clarification on an issue that’s raised that relates to the facts, I will ask everybody for that information.

Justine Harman: But Cohen is still hung up on the Kearns stuff—specifically the memo Matt Murphy had “come into,” portions of which ran in the Los Angeles Times. Why was it okay that members of the press published excerpts from a partially-redacted performance review memo? Why not unseal the original version of the memo for everyone to see? What deep, dark secrets was Matt Murphy hiding under those opaque black lines? He wants both versions unsealed— yesterday.

Bromberg is over it.

Judge Bromberg: Okay, hang on, sir. We’re getting into bantering again. I’m not going to do that. I appreciate, I respect everything you’re doing. I respect everything all counts for doing, but there’s an issue between you and Mr. Murphy.

And, I’m seeing it starting to impact this case. Because it’s impacted the case for the last two years. Uh, I’m sorry. What I’ve been what I’ve been reading. I’m saying it. You don’t have to agree with that. I’m not interested in, in, in the banter. I’m not interested in taking shots. The issues that we have here are what they are. We’ve already discussed them. You’re going to file a motion. We probably should have stopped this 45 minutes ago. Okay. Um, I don’t like cutting lawyers years off when they have something that they want to say, but I haven’t heard anything yet new that we haven’t already discussed that I’m not going to read in the motions. I’m not one of those that wants to hear it twice. So is there anything new that you want to add at this point?

Justine Harman: The judge doesn’t know what to do with the Kearns memo right now, he says. The defense is welcome to share Kearns’ deposition testimony from the civil suit as proof of some underlying collusion between the former investigator and the victims in this case if they want. They can also file an unreacted version of the Kearns memo. Both versions of the memo will remain under seal until further notice.

Judge Bromberg: If they become in evidence, remember they’re not in evidence right now. There are hearsay documents floating around. No one can use them for anything right now. I’m not even convinced they’re confidential documents. I don’t know what the practice is in the district attorney’s office regarding these types of memos. But I would think if something was going to be confidential from that office, it would say so.

But right now it’s just kind of a Hanging Chad.

Justine Harman: You’ll remember the term “Hanging Chad,” from the 2000 election. Those little half-punched holes on the ballot that became a symbol for political fealty and also probably lost Al Gore the presidency? Textbook Boomer reference.

Well, the Kearns memo wasn’t a hanging chad for long.

Less than two weeks after the March 25 hearing, Jennifer Kearns filed her own lawsuit against Todd Spitzer, claiming he colluded with the defense to sabotage the criminal case from the moment he took office.

The contentious Kearns memo was unsealed too. I’ve read it. And I cannot imagine a world where any version of it—redacted, unredacted, or shredded—is a good document for the defense. Almost all of the allegations of misconduct by the DA’s office against Kearns “were either shown to be completely untrue or unsubstantiated. “By all accounts, Kearns was honest and forthright in this investigation.” For some minor procedural errors, the commanders recommended additional report writing training and a letter of reprimand. So much for that compelling “rogue investigator” theory.

But at this point in the case, we’re now at April 21, 2021, Judge Bromberg doesn’t want to dig through the weeds anymore. He wants to set a preliminary hearing.

Judge Bromberg: I’m ready to set a preliminary hearing on this case.

Yvette Martinez: Understood your honor. It’s because we have conducted a very thorough review of this case. We have looked at all the evidence. We have talked to all the victims that are willing to speak to us. We’ve done our due diligence, and then some. We are very close to a decision. Our decision is imminent. However, because we do have an entirely new boss, out of fairness to him, we would like the opportunity to explain our review so that he can then sign off on a decision.

Justine Harman: In March of this year, Xavier Becerra, whose name I mispronounced as Xavier-with-an-X in an earlier episode; I regret the error, was confirmed to be President Joe Biden’s secretary of health and human services. His replacement, Jon Bonta, wasn’t formally announced as California’s new attorney general until the day after this hearing. The man is so new in his gig as the top prosecutor in California that the ink hasn’t even dried on his press release.

Wonder how much he knows about the serpentine case against Grant Robicheaux and Cerissa Riley.

Judge Bromberg: You’re going to sit down with the new attorney general and discuss this case with him, is that what you’re telling me?

Yvette Martinez: We’re going to brief him on our review.

Judge Bromberg: Who is we? You’re the attorney that’s been involved in this case from the beginning.

Yvette Martinez: Correct.

Judge Bromberg: The delays in this case are insurmountable. We’ve had this case for 5 or 6 weeks now in this courtroom. I’m not saying they weren’t warranted. They were well warranted, what with the motions and the delays and the nastiness that went on. So that’s not the criticism. The criticism is “in deference to the new Attorney General”? I just don’t understand that. I’m not excited about that at all. And May 25? Why is it going to take over a month to brief the AG on this case? Is that because he’s busy, and has other things to do?

Yvette Martinez: Not at all, Your Honor. I was referring to all of the other attorneys. It’s quite difficult to find one date that works for everyone.

Judge Bromberg: How about we do this? Can you give the court a preview of where you’re going on this case? Do you believe you’re going to be able to move forward with it? Do you believe you’re going to be asking for something else? Do you believe you might be asking for a special prosecutor? What do you think you might be doing? How about a little assistance here?

Yvette Martinez: I do not believe that we are going to be requesting a special prosecutor. However, the decision of how we go forward is not entirely mine to make. That would be the new attorney general’s decision.

Judge Bromberg: Really?

Yvette Martinez: He’s the elected official.

Judge Bromberg: He’s the elected official and the elected official determines what cases go forward? Is that how that works? I’m just speaking from ignorance, I’m sorry. Is that how that makes the [inaudible]. The tail kind of wags the dog a little bit? Is that how that happens?

Yvette Martinez: I don’t think it’s a situation where the tail’s wagging the dog. However, I do think that this is a very serious case. There’s a lot of going on in the case and we do need to properly brief the now AG.

Judge Bromberg: But he is going to make the decision whether it goes forward, not trial counsel, is that correct?

Yvette Martinez: We will make recommendation.

Judge Bromberg: You’re not answering my question.

Yvette Martinez: Your honor, I do not make decisions for the attorney general, but I can make a recommendation based on my review.

Judge Bromberg: Okay. Can you give the court a heads up as to what your recommendation might be at this point in time?

Yvette Martinez: At this point, I cannot.

Judge Bromberg: Why?

Yvette Martinez: Because that is for the attorney general to sign off on.

Judge Bromberg: The attorney general has to sign off on whether you can state a recommendation or not?

Yvette Martinez: To the court?

Judge Bromberg: Yes. I’m asking you, I’m asking you as an officer of the court to give the court… This case is so old now. I’m asking you, it’s not unreasonable what the court’s asking. I’m asking you to give the court at least a heads up or an idea as to the direction you are going with respect to a recommendation you might give to the attorney general, who is a politician. You’re not a politician.

Yvette Martinez: I am not a politician—

Judge Bromberg: Politics don’t play in the third branch of government, remember that, right?

Yvette Martinez: I absolutely agree.

Judge Bromberg: Okay, good. All right. So, do you think what I’m asking for is unreasonable?

Yvette Martinez: I think the best I can say, your honor, at this point is that we expect to move forward on some counts, but not all counts.

Judge Bromberg: Okay. Can you do any better than that?

Yvette Martinez: At this point, I cannot. One thing I am considering is that we need to speak to the victims before we publicly announce which counts we may or may not move forward with.

Judge Bromberg: How is that going as far as speaking with the victims? I know that when you were in Judge Pham’s court at the beginning of the year, and subsequent to that, you had indicated to her that you wanted to meet with the victims because apparently, you had not done that. I’m glad to hear that you’re making an effort to do that. And it’s been quite some time. Have you not met with any of the victims yet? Or have you met with some of the victims?

Yvette Martinez: We’ve met with all the victims that are willing to meet with us at this point. There is one remaining victim who is out of state that we are still trying to connect with.

Judge Bromberg: Okay, how many alleged victims have you met with?

Yvette Martinez: We’ve met with Jane Does one, two, four, and six.

Justine Harman: To refresh your memory: Jane Doe 1 is the lawyer accusing Grant of raping her in 2009—and the author of the impassioned plea read in court on that pivotal day in February of last year that we heard in episode 6. Jane Doe 2 is the woman from chapter 2, who says she was raped by Grant and Cerissa as a team after a Sunday Funday in 2016. Jane Doe 4 is the woman whose screams prompted 9-1-1 calls later that year.

Jane Doe 6, whose story you haven’t heard yet, says that over Easter Weekend 2017, she was visiting Newport with a UCLA classmate whose parents have a home there. She was 22 and single and she matched with Grant on Bumble; the two made a date at the pricey sushi restaurant Nobu. Grant arrived to dinner with Cerissa, whom he explained away as a friend visiting unexpectedly from out of town. Riley was immediately friendly, she says, and after the group had a few cocktails, pressured her into doing a drug she said was cocaine in the bathroom of a country-themed bar. The next thing she remembers is waking up inside the beach house.

“I have a friend visiting unexpectedly from out of town.”

She says Grant and Cerissa had sex in front of her while she cried. Then Riley, who Jane Doe 6 says “played kind of, like, a teacher kind of role,” suggested she drink some water. Robicheaux grabbed a bottle, added something to it, shook it, and handed it to her. Jane Doe 6, who was 22 at the time, says she began to feel extremely intoxicated and locked herself in another bedroom. Cerissa came back to the door and pleaded with her, “He’s going to get really mad; open the door or he’ll hurt us.” She then overheard the couple arguing and Robicheaux calling Riley “a selfish bitch.”

[Whispered] “He’s going to get really mad; open the door or he’ll hurt us”

Jane Doe #6 says she didn’t open the door again until 6:00 AM, when she snuck out of the beach house to get her Uber. She has the Uber receipt and text messages to her best friend about the incident. And—before she left—she looked through their things and took pictures of Grant and Cerissa’s drivers licenses. She brought all of this evidence to Jennifer Kearns after learning about the arrest on Snapchat. Since that night back in 2017, Jane Doe #6 relocated to Israel and joined the Israeli Defense Forces. There is a 10-hour time difference between California and Israel. That feels like a reasonably difficult Zoom to get on the calendar.

Judge Bromberg seems pleased with the AG’s progress.

Judge Bromberg: Okay. All right. All right, that’s encouraging, you’re making progress. All right. Was that through an investigator?

Yvette Martinez: An investigator was present at all those meetings, yes.

Judge Bromberg: Very good. All right. Okay. So it sounds like you’re making progress.

Yvette Martinez: We are making progress, honor. And as I said, our decision is imminent.

Judge Bromberg: Is what?

Yvette Martinez: Imminent.

Judge Bromberg: Imminent. It’s the mask thing, we all have to deal with this stuff. Okay.

 

Matt Murphy: May 14th, Your Honor.

Judge Bromberg: What’s the problem?

Matt Murphy: I’m going to be in Indonesia on that date.

Judge Bromberg: I’m sorry?

Matt Murphy: I’m going to be in Indonesia on May 14th.

Judge Bromberg: Okay. 

Justine Harman: Maybe I shouldn’t be surprised that Matt Murphy, a proud surfer and the lawyer for four victims in this case, will be in Indonesia on one of the most important court dates of his clients’ lives.

I’ve stopped pretending there are male heroes in this story. And I’ve stopped pretending I’m not putting myself in a vulnerable position by telling it. I just never imagined I’d become an ancillary character in the proceedings.

On Wednesday, April 28, two days after chapter six of this podcast, in which you heard an actor portray the impassioned words of Jane Doe #1—I was served with a subpoena by the defense’s P.I., Russell Greene while buckling up my five-year-old son in his carseat to take him to school. It’s been suggested to me that Russell, whom I certainly recognized, but only in that surreal “hey person I saw on TV” way, was personally sent by the defense as an intimidation tactic. I’ve heard crazier things.

Back in April of last year, before the motion to dismiss was denied, I interviewed Dan Gilleon, whose client Jane Doe #5 lodged the civil suit against Grant and Cerissa and opened a pipeline for the defense lawyers to rake third party witnesses for exculpatory evidence. There’s a very negative perception of this lawyer, and I’d imagine his client, in the criminal case. I imagine the thinking is…What kind of victim allows other victims to suffer for their personal gain?  

Dan Gilleon: She filed a lawsuit in 2018 because the statute of limitations was coming up for those civil lawsuits and we filed it and thereafter the media picked up on it and we’ve been trying to explain our position and how we interact with a criminal case ever since.

Justine Harman: In the context of the retaliation allegations made by Jennifer Kearns, that Spitzer QUOTE “colluded with Grant Robicheaux and Cerissa Riley’s defense attorneys while ‘engaging in a concerted political campaign to undermine the prosecution, discredit the victims, and ultimately destroy the criminal case’ against the couple”—my conversation with Dan kind of hits different now.  

Dan Gilleon: In the criminal case, my client is a witness, just like any other witness in any case, they also call her a victim, but in reality, she’s just a witness like anybody else. And she has to be subpoenaed to appear at trial and she’s agreed to do that.

In a civil case, she is the plaintiff, the victim is the plaintiff and she is represented by an attorney and that’s me. And the purpose of the lawsuit is to obtain compensation for the damages that she suffered as a result of what Dr Robicheaux did. In the criminal case, the whole purpose in reality, even though they call themselves the Department of Corrections, and lot of people believe that it’s all about trying to correct some wrongdoing and maybe steer the defendant in the right direction, in reality, the purpose of a criminal justice system is to punish the defendant and make society feel better about that. That’s the reality of it. It’s retribution. And so that’s what a prosecutor is doing, the prosecutor’s goal is to represent the people of the state of California and get a conviction against Dr Robicheaux and punish Dr Robicheaux by sending him to prison, that’s it.

The problem with that for Danielle’s point of view, is that she gets really nothing out of it.

 

She thinks maybe that there’s some justice happening, but in reality, she gets nothing out of it more than you or I get out of it, she’s just one of the people of the state of California. But it’s really quite painful for her because she comes under attack by the defense attorneys, by potentially some of the jurors, but she’s also left in the dark the entire time, left in the dark. If she tries to get any information from the DA, it’s very limited as to what they will provide her. And so it’s a pretty miserable experience. I’m not saying that being a plaintiff in a civil case is fun, it certainly isn’t, but it’s a whole lot more bearable in a civil case, because first of all, she’s seeking compensation for what she went through.

Justine Harman: This blustering by the defense, the subpoenas. The mock outrage. The peppering, the fishing. This is business as usual.  

Dan Gilleon: What this is, it’s the stage where defendants, criminal cases usually stay, they stay at a stage where, she’s lying and let me tell you why she’s lying. She’s a druggie, she was a drunk and she’s extorting me. That’s what happens unfortunately, to victims in criminal cases and civil cases, that’s what the attorneys do, it’s just knee jerk.

And that’s just the beginning. That’s just the beginning of what happens. 

Justine Harman: But, Gilleon says, the cartoonish villainy of the exercise—the fact that the gas is turned all the way up, that anyone would walk into this room and be like, Yo. It stinks in here. Someone left the gas on. It straight-up smells like gas in here—can embolden a plaintiff.

Because maybe it means they’ve got a case on their hands.

Dan Gilleon: It’s almost easier for them to stay the course when the defense attorneys are taking cheap shots like that, because, ultimately it begs the question, if you had some evidence that she was lying, if you had some evidence that your client didn’t do this, wouldn’t it make more sense to throw that out there as opposed to just attacking the character and juries are really good at seeing through that.

99 out of 100 times, a guy is going to get away with it from the standpoint of the criminal court. And the reason is this, is that two thirds of all sexual assaults don’t get reported at all. So there’s 66 guys right there, that it doesn’t even get reported. Of the remaining one third, so the 33 guys out there where the victim comes forward and reports it, only 3% of those are ever going to make their way to the criminal court system with a filing and a conviction. So just doing the math, we’re talking about a tiny percentage and it varies from state to state, but overall in the end, it’s about 1% of all cases, sexual assaults, result in a conviction.

 

It’s just awful for a victim to go through years of that, then to be told … like it happened recently, by this district journey in Danielle’s case, my client learned from the media that he had decided to drop all the charges, using that same reason. Well, we don’t think that we could meet our burden of proof. It’s just a really, really tough situation. I think that could change if we would just change how we get district attorneys in there and get trial attorneys in there that aren’t scared to lose a case, as opposed to politicians. I think that would change a lot of things.

Justine Harman: I had to know: GHB—is that something you’ve ever seen fall under the Casual Party Drug category?

Dan Gilleon: Not as a party drug, no. And especially for women, not for women, I mean maybe if you’re a really cheap guy that weighs about 400 pounds, I mean, because no it’s 10 to one, doing one shot is like doing 10 shots. What person in their right mind are going to use that because the calories. No. I’ve come across it all the time, it’s always a date rape drug, always. This is I suppose, well we call them hail Mary’s, where they’re going for anything they can. Yeah, they were party girls and she was partying on GHB.

This is a unique criminal defense, and they’re very, very aggressive. It’s like a [inaudible] pointing to the fence. I mean, they stand to lose everything and they’re sitting there right now calling a home run over the center field fence, and that’s the way they’ve been conducting themselves. There’s a lot of money being spent and I don’t know where Dr Riley got it from, but a lot of money being spent. And right now they’re really positioning this to be an all out war. And I think it makes sense if you have a DA like Spitzer, who’s willing to roll over and say, “I quit.” After having these women devoted and dedicated to this criminal process for years.

Well that, Spitzer using this as a political tool, even before he was elected. He gets up there and on one side of the mouth, he’s saying, “Elect me, I’m a champion of all sexual assault victims. I was part of the Marcy’s law, blah, blah, blah, blah.” And then on the other hand, he’s handing out private information about the victims to the media and trying to use it to get elected. Then he comes on and the defense attorneys take a deposition and then get the former DA to say and just be honest, yes, he did see some political benefit in filing this case. Well, guess what? That’s what all DA’s do. All DA’s look at cases they filed that are high profile, as to the effect on their politics. Every one of them does and that’s what the problem is.

 

But then this DA, who himself played the dirtiest of all politics, just to get elected, then comes out and throws his predecessor under the bus, as a reason for why he’s dismissing the charges. None of that evidence was it was admissible. It was never going to come into trial, but he cites it anyway. So there’s some stuff that it just doesn’t add up. I had conversations with Spitzer before he was even elected. I was not impressed, didn’t like his attitude, didn’t like the phoniness, didn’t like the transparent politics that he was playing. And I just knew coming in, that something was going to happen.

Justine Harman: OK, I said. Isn’t the “Swingers” argument a really flimsy defense? It basically puts the defendants’ hands on the gun without quiiiiite pulling the trigger.

Dan Gilleon: Yeah, it’s not a good one. I don’t like it, but they’re trying, I mean, maybe in Orange County, I don’t know. I mean, I really don’t know. Well I can tell you this. I cannot remember one time ever thinking that I had a “swinger” as a juror on any panel I’ve been in front of. I don’t know if that’s going to work at trial. It’s not the best defense, in fact, it’s an awful defense to start saying that that’s what they were into. And because everyone knows that the human nature is always to kind of, well, oftentimes, especially with drugs, is to push the envelope.

If you’re a ‘swinger’ and you’re engaging in sexual activities that most people don’t do, then isn’t it foreseeable that you’re going to encounter a woman that doesn’t want to do it either?

It’s very possible that they just did this so much and every once in a while that he went too far. That’s the way a lot of crimes are committed by the way, is that guys, they ride the fence, they go almost all the way up to the point of committing a crime and then they stop. And if they do it a lot and they get cocky, then invariably it’s going to happen that they go too far. But that’s a crime, that’s a felony. And so I don’t know if that’s a very good defense at all, but then again, if you have nothing else, then that’s what you got to go with.

Don’t lose sight of the fact that there are several victims, none of whom stand to benefit from any of this, that said the same thing, that alone is damning. There is no reason for a woman to ever make something like this up. There’s just no upside to a woman for doing that. Yeah, there are those rare cases that we hear about, where they do make something up. But those cases, even though they’re rare, they always get weeded out during the investigation stage. They never make it all the way to a criminal court. And that’s just with one victim, just one victim. Well, what’s the odds that five victims, who are willing to come forward, and one of them is a defense attorney, a civil defense attorney, there is zero reason for them to make something like this up.

 

Justine Harman: One of the very first people I talked to when I started working on this podcast is a civil litigator in Orange County named Sara Naheedy. I originally contacted her I read a blog post she had written in 2018 titled “Corruption in the Orange County District Attorney’s Office.” Back in March 2020, I asked Sara to pinpoint the most astounding part of the case against Grant and Cerissa:

Sara Naheedy: Reading that case was just mind boggling to me because this doctor who was charged with these crimes and his girlfriend, it wasn’t just one victim or one person who came forward. There were multiple people who came forward and this doctor was charged. And then once a new DA came in, Todd Spitzer, all of a sudden this case got a whole new vantage point where the new DA said, “Hey, there’s not enough evidence here. We can drop the case.”

What stands out most to me is that how could this case just simply go away? Something is amiss here. There’s something that the public doesn’t know.

Justine Harman: Nearly an entire year later, and five days before we launched this podcast, I called Sara again. She remained convinced that Todd Spitzer and the defendants must be connected in a political or financial alliance.

It didn’t surprise her one bit that, considering the case’s checkered past, the AG’s office had been unable to reach three of the seven victims.

Sara Naheedy: When you were talking about the victims not showing up or cooperating with the attorneys who were prosecuting the case. I wonder, Are they being silenced? Is somebody paying them to go away and not pursue it? Or is it more from a place of, I have so much more to lose by pursuing this and having all of the details of my personal and private life out in the public because I feel that victims often don’t come forward because you have so much to lose by telling your story and the sense of being discredited, undermined, slut-shamed, negative repercussions for your career, for your personal life, your family life.

It creates a lot of anxiety for the victims and a lot of unknown and a lot more pressure to have a buildup like this. And I’m sure a lot of these victims want to move forward with their life, get married, start a family, whatever it is, pursue a career and to to have this the hanging over their heads, it’s not something I would wish for anybody.

 

So again, the delay, the constant delay has been detrimental psychologically to the victims and probably their willingness to want to continue and move forward and tell their story.

Justine Harman: On May 14, 2021 all sides reassembled in court for what the Attorney General had promised would be the very last pre-trial hearing:

Sara Naheedy: We’re on the record, People vs. Robicheaux and Riley.

Justine Harman: Just three days prior, the AG’s office filed a motion to amend the complaint against Grant and Cerissa.

Judge Bromberg: You are asking the court to dismiss all of the sex charges, including rape and oral copulation by anesthesia, correct?

Yvette Martinez: No, your honor. We’re keeping charges as to Jane Doe 6, including one of the original charge which was assault to commit a sex offense.

Judge Bromberg: Are you seeking to dismiss the rape charges?

Yvette Martinez: As to the other victims? Yes.

Justine Harman: Of all of the allegations made against Grant and Cerissa, Yvette Martinez says, the only sex crime they think they can prove is that Grant and Cerissa drugged Jane Doe 6 with the intent to rape her. (This is the woman who says she met Grant on a dating app over Easter Weekend 2017 and then locked herself in the bathroom after she was drugged.)

A team of four from the AG’s office met with all of the victims who would cooperate, and they were unanimous in their findings. Though no one ever actually breaks the fourth wall and addresses the attending press, you can tell that everyone in court is carefully weighing their words.

Everything is coded. Everything is loaded.

Judge Bromberg: Which of the alleged victims refuse to speak with you?

Yvette Martinez: Your honor, I am very hesitant to name.

Judge Bromberg: We’re just giving Jane Does. We’re not using proper names.

Martinez: Even with a Jane Doe I’m hesitant to state that in open court. I’m happy to have those conversations in chambers.

Judge Bromberg: Why are you hesitant?

Yvette Martinez: Because I don’t want it to seem as victim blaming.

Judge Bromberg: Well, you did put it in your motion, didn’t you? That some—

Yvette Martinez: We did, however we did not name them. But like I said, I’m happy to have this conversation.

Judge Bromberg: How many are there that did not talk to you?

Yvette Martinez: There are two.

Judge Bromberg: Was that because of unavailability or they chose not to talk to you or you don’t know?

Yvette Martinez: They chose not to speak to us.

Justine Harman: Judge Bromberg asks for clarification: After speaking with five of the seven alleged victims, did the Attorney General’s office believe that any of the women were lying about what they say happened to them?

Judge Bromberg: In interviewing the alleged victims in this case and then reviewing the statements for those that would not speak with you, and I’m sure you did that, did you and your team make an issue, make a determination as to the issue of credibility as to the alleged victims?

Yvette Martinez: We made a determination as to provability of counts.

Judge Bromberg: Okay. I respect that. So, in determining the issue of provability, whether or not you can prove your case, would you agree credibility is a major factor or credibility of witnesses can be a major factor?

Yvette Martinez: Yes.

Judge Bromberg: So, did you and your team make a determination of credibility as to one or more of the alleged victims as it relates to the provability of the case?

Yvette Martinez: No.

Judge Bromberg: No. Okay. So, you believed… You did not believe the alleged victims were being untruthful?

Yvette Martinez: We have no reason to believe that any of these victims are being untruthful. In general, that doesn’t necessarily mean that that is a provable case. 

Judge Bromberg: [tap, tap, tap] So, when you said you have no reason to believe any… are you referring to any of the victims? There’s not one alleged victim you believe was being untruthful. Is that correct?

Yvette Martinez: That’s correct.

Judge Bromberg: I just need to… Okay. All right. But, by the statements that they’ve given, you’re of the mind that you cannot prove this to a jury?

Martinez: Yes.

Judge Bromberg: Okay. All right. Clarification. Good. All right.

Justine Harman: Judge Bromberg takes it all in before making his decision: He’s not granting the amendment, not just yet anyway. He wants more information, count by count, as to why the allegations made by five credible women wouldn’t stand up in court.

Judge Bromberg: I’m not looking for a 250-page brief so quickly you will be very direct and incredibly specific as to why you cannot believe you cannot prove your case.

With that, you may be giving the store away to a certain extent, but I don’t know how I can even think or consider granting your motion if you don’t give me the information or the tools that I need to consider your concerns. Because you, think about it, you are, or you have thought about it obviously. You are looking to dismiss every single allegation of a sexual nature that resulted in a charge and the violation of the California penal code with the exception of the one that’s in there now, and how you want to modify that as to alleged victim number six. Okay. So, that’s why I need to know. And if you don’t give me the information I need and you’re going to give it to me verbally in court. I’m not suggesting you wouldn’t, but if you’re looking to be cautious, throw caution out the window, I need to see what you’re talking about. There’s a lot at stake for the defendants, the alleged victims and for the people. There’s a lot at stake, and everyone’s going to be transparent about this. That’s the only way I can do my job and make a determination. I can’t do it any other way.

Justine Harman: I watched the May 14th proceedings live with a sense of abject horror. And then I thought of Jane Doe 4, the woman whose screams prompted neighbors to call 9-1-1 more than four years ago, trying to make sense of what we’d just heard.

I texted her lawyer, Mike Fell: “Wait, for real? One charge after all that? 

He called me on his way home from court.

 

So another crazy, eventful, head-scratching day in court for us civilians. But my sense in what the judge is saying basically, is that of the sex charges, the only one that they’re advocating to go to trial is the one against Jane Doe #6. Is that accurate?

Mike Fell: Yes that is accurate. That’s the attorney general’s position right now, but we’re very much in a position that we were pre-June 5th. So as Yogi Berra says, it’s almost like déjà vu all over again, right? Because the judge is asking for briefs as to whether or not he should allow the attorney general’s office to amend the complaint. And if he allows the attorney general to amend the complaint, then you’re right Justine, six out of the seven victims will be dismissed.

Justine Harman: And your client is aware. I guess the AG called you or her this week and told her of the position they were in or what they were?

Mike Fell: Yes, we actually had a meeting with the attorney general last night and with my client and her supervisor and her investigator. So yeah, I will tell you this, the attorney general has really been wonderful about keeping us in the loop as to what’s been going on. Not that we agreed with her position, but she really has been wonderful about letting my client know what’s going on and just making sure that my client is aware of what’s occurring in the proceedings.

Justine Harman: But it’s like the whole court knows. It felt like a knowing. Like, we know that all of this looks really bad. We know that none of these women are purposefully misleading anyone, and yet we can’t prove it. It’s just a hard thing to kind of sift through your brain as a person who’s been paying attention to this and watching it, it’s sort of like, everyone’s like, no, no, you’re not lying. We’re not saying that nothing bad happened to you. We just can’t prove it. And it’s a hard fact of how we judge these events and how we… It’s just hard to process.

Mike Fell: Well, and that’s why it’s a head-scratcher. And the disadvantage that I am in as a Marsy’s Law attorney representing a victim in the case is that I am not privy to the same evidence that the prosecutor has and the same evidence that the defense attorney has. And that’s why I said to the judge exactly that. I’m at a disadvantage. I don’t know what type of impeachment evidence the defense is talking about. I don’t know if there’s evidence that the prosecutor is relying upon to be able to make a determination that they can’t prove the case beyond a reasonable doubt, but my position is then ask my client, then put her on the stand and try to impeach her and let’s hear what she has to say. So if they’re impeachment evidence is, well, you said the sky was black that day and the sky was blue, let her explain why she believed the sky was black and whether or not that’s an issue that goes against the fact that she was sexually assaulted or not.

Justine Harman: Obviously we were anticipating something a little different, or at least I was last week? What would you call this moment in the timeline of the case?

Mike Fell: Great question. Put it this way. I’m very pleased. I’m pleased that the judge has taken this under submission in the fact of he wants everybody to be able to state what their position is as to whether or not they should be forced to go forward. As you heard, the judge also talked a little bit about whether or not there’s a special prosecutor, which potentially could be appointed. So again, there’s more twists and turns if I were to have to… I think the word that you said is “what do you call today”? I would call today more of the rollercoaster ride.

Justine Harman: It hadn’t once occurred to me that what I’d just witnessed, this new loopty- loop on the never-ending coaster ride, could be interpreted as a positive thing. 

But then I remembered all of the tiny victories it took to get here.

Sex crimes cases are not won by a landslide.

They are won, and lost, by hanging chads.

Here’s what I know: In the upcoming weeks, the defense will argue that the court doesn’t have the power to deny the amended complaint. That a motion like that can only be denied when there is proof of some sort of ulterior motive or political conflict. They’ll fight to move ahead on a sex charge that could garner their clients a ten-year prison sentence because it means leaving the allegations of six others in the rearview. They’ll revise their position as many times as necessary—like a video game whose universe reimagines itself or a virus that learns. They’ll light money on fire to do it.

They’ll huff and puff. They’ll try to blow this goddamn house right down.

But one thing they can’t deny is that a year ago Judge Jones changed the course of this case forever by refusing to dismiss the case against Grant Robicheaux and Cerissa Riley.

And now it is one step closer to trial. One step closer to a conviction. It has been wrested from Todd Spitzer’s hands. It is has been battered, but not broken.

This case isn’t just about seven women who say they were drugged and assaulted by a handsome couple in Newport Beach. It’s another step forward in our collective deprogramming, and a mighty blow to the powerful myths we’re all taught:

That women lie about this.

That women “cry rape” to get back at men who rejected them. That women don’t prey on other women.

That any occasion where a man didn’t assault a woman—or properly understood the notion of consent—proves that a man is not capable of this behavior. We don’t think that way about any other criminal activity. We don’t say, Hey, murderer. I noticed that you didn’t ever kill your barista at Starbucks. Guess you must not be a killer? But when it comes to sexual assault, the inconsistency is just too upsetting to bear. A rapist, we tell ourselves, cannot hide who he is.

What we don’t say is: He really doesn’t have to. 

The next court date in the People v. Robicheaux and Riley is on the calendar for June 11th. At that time, all sides will discuss the briefs they prepared.

And then there will be a hearing after that and another after that. 

The victims may eventually take the stand. And when they do, they will be asked to recall what happened to them, as best as they can, through the fog of time and trauma and disbelief.

In my head, Jennifer Kearns, a veteran investigator who spent 25 years advocating for sex crimes victims and has been effectively gagged by the sitting district attorney of Orange County, is rooting for them to keep pushing the boulder uphill. Go, go, go.

It has been over ten years since Jane Doe 1 says she was raped by Grant Robicheaux. Ten years since she says a cocky medical resident looked a law student in the eye, after forcing himself inside her, and said, “We are having sex now, so there’s no point in saying ‘no’ anymore.'”

Right before filing this episode, I called Jane Doe 1, who is expecting her first child at the end of this month. I asked once more whether she might like to speak with me on the record about her experiences, and she said maybe one day, but not just yet.

She knows if the AG’s motion to amend is approved, she will no longer be involved with the case. She’s good with that. She did what she came here to do, two and a half years ago, when she heard on the news that her rapist might finally be punished for what he did.

“May 14, 2021,” she told me, “was a good day.”

“Bottom line,” she said, “they want to move forward with at least one victim. That’s a win. And we just need one to get a win.”