Chapter 5: God With Two Ds

CHAPTER 5—God with Two Ds

Justine Harman: Truth is singular and lies are plural, but history—the facts of what happened—is both immutable and mostly unknowable.’ —David Carr, The Night of the Gun.

A listener’s note: The following series includes descriptions of violence, sexual assault, and grooming. It is not recommended for young audiences.

From Justine Harman and audiochuck, this is O.C. Swingers, chapter five: “God with Two Ds”.

Justine Harman: When Grant and Cerissa were finally arrested on September 12, 2018, eight months after officers seized guns, drugs, and electronics from their home, things weren’t looking good for the pair.

CBS This Morning clip: “This is a disturbing story. Good morning. Prosecutors describe Dr. Robicheaux and his girlfriend as an attractive couple who lured victims into letting down their guard. The Orange County District Attorney says videos found on Robicheaux’s phone suggest the couple could have assaulted several more women together.”

Justine Harman: And on October 17, 2018, after the DA Tony Rackauckas urged additional victims to come forward—

Tony Rackauckas: With this announcement, we’re hoping that some people see it and say, “Hey, I was in that circumstance, I was there. I should come forward.”

Justine Harman: —the two were arraigned on an amended complaint that included charges from five new victims. The arraignment had been scheduled for October 25, but the DA’s office moved it a week earlier, because it wouldn’t be prudent to leave Grant and Cerissa “out in society when we know that there are more serious charges that have occurred and more victims.” Thanks to the women who came forward after the arrest, Grant and Cerissa were now were now being charged with 17 felonies, including forcible rape, rape by use of drugs, oral copulation by anesthesia or controlled substance, and three counts of kidnapping to commit sex offense. The couple pled not guilty to all 17 counts.

During the arraignment, deputy district attorney Jennifer Walker argued that, based on the scope of the charges, bail should be raised from $1,000,000 to $3,000,000 each. The defense argued that Grant and Cerissa weren’t more dangerous than they had been a month ago, and that they’d already proven not to be a flight risk. Twice in the last nine months, Grant and Cerissa traveled outside of the country, and they had returned. Grant’s lawyer Philip Cohen said, “To the extent that the government continues fully to believe today that this man and this lady are a threat to the public at large, their face has been all over the world. She ain’t”—he said, referring to Cerissa—”She ain’t sneaking up on anybody, like, ‘Hey, do you want to hook up? Do you want to have fun? Come hang out with us.'”

Judge Jones, the same judge who signed the original warrant, listened intently before deciding that the bail would stay set at $1,000,000, but that the defendants must surrender their passports. There was no sense in insisting Grant and Cerissa wear a GPS device, he said, since they could just remove it with a knife if they really wanted. “Or a hacksaw to the ankle sometimes,” Cohen offered.

During recess, Tony Rackauckas updated members of the press who were waiting outside:

Tony Rackauckas: As of today, we’re able to file charges on behalf of seven victims. Both defendants Grant Robicheaux and Cerissa Riley are charged with multiple counts of kidnapping with the intent to commit sexual offense, rape by the use of drugs, assault with the intent to commit sexual offenses, possession of a controlled substance for sale, and as corresponding sentencing enhancements. Additionally, Robicheaux is charged with forcible rape, an additional count of rape by use of drugs, and possession of an illegal assault weapon. If convicted, Robicheaux faces 82 years and four months to life in prison and Riley faces 63 years to life in prison. As you saw in court, bail’s set at a million dollars.

Over the last few weeks, our investigators both in the Orange County District Attorney’s office and the Newport Beach police department have received nearly 100 phone calls providing new leads and some cases with additional victims. We’ve been actively investigating all of these leads, and today, we filed on the most immediate victims with evidence beyond a reasonable doubt to support the charges, but the investigation continues.

Justine Harman: Tony then tries to anticipate the questions that might follow. Like, why were there now charges of kidnapping?

Tony Rackauckas: We believe that the defendants met the victims in a public place, drugged them all in that place and relocated them the defendants’ home after their victim for rendered incapable of consent, with the intent to sexually assault their prey, that’s kidnapping.

Justine Harman: And were any of the new victims identified from videos or images found on their computers?

Tony Rackauckas: We’re continuing to go through the digital evidence or the electronic evidence. None of the evidence in the new charges involves digital media evidence recovered from the defendants.

Justine Harman: But members of the press have more questions—especially about the timeline. Why did it take so long to arrest these two after everything that was found during the search, so many months ago? Couldn’t Grant and Cerrisa have been drugging and assaulting women that whole time? Michele Gile from CBS Los Angeles tries to pin down the details.

She asks, ‘Would you please clarify? Because I feel like we’re throwing out all these different dates, and I’m getting jumbled up in what is really accurate here. From the time that the search warrant was served until the time that the case was filed and they were arrested, were women drugged and raped by them?’

Michele Gile: Would you please clarify? Because I feel like we’re throwing out all these different dates, and I’m getting jumbled up in what is really accurate here. From the time that the search warrant was served until the time that the case was filed and they were arrested, were women drugged and raped by them?

Tony Rackauckas: We don’t have any evidence of any women who have come forward during that time, period. But let me back up on that. From the time that the search warrant was served… So what we have is we have two victims who were victimized during that time period that you’re referring to, and they only came forward because the case was filed, and because of the press conference that we had. They came forward because they felt that they should, because they wanted to give support to the two ladies who were victimized and about whom we charged files, we charged the case. And so we do have that, yes.

Justine Harman: At this point, Gile—frustrated with the DA’s apparent lack of clarity —redirects the question to Jennifer Walker, the deputy district attorney who was leading the investigation against Grant and Cerissa at the time. She asks, “Jennifer, can you clarify?” Susan Kang Schroeder, the DA’s chief of staff, ushers the competent deputy to the podium while their boss continues to flip through documents.

Jennifer Walker: We don’t have any information to believe there are charges after the search warrant was effectuated and before filing.

Michele Gile: So, the new five Jane Does—

Tony Rackauckas: Okay, wait a minute, wait a minute.

Justine Harman: Tony returns to the mic with a small, bashful smile.

Tony Rackauckas: All right. So thank you. Let me…

You’re getting me on that time period a little bit. So you’ve got the date the search warrant was

Justine Harman: Gile tries once more. She asks, “I’m trying to understand whether any women were victimized between the time that the search warrant was served and their arrest. And I believe the answer is no.”

Michele Gile: I’m trying to understand whether any women were victimized between the time that the search warrant was served and their arrest. And I believe the answer is no.

Tony Rackauckas: Okay. The answer is no. I’m sorry, and I misspoke.

Justine Harman: Immediately following Rackauckas’ Q&A, the defense and a county supervisor named Todd Spitzer addressed reporters.

The animosity between Todd Spitzer and Tony Rackauckas is well known in Orange County.

They’ve been political enemies since Tony fired Todd from the DA’s office back in 2010. Over the years they’ve had so many public squabbles, it’s hard to keep track. They have accused one another of lying, of improper behavior, of impersonating public officers, and of accepting dirty donations.

On the day of Grant and Cerissa’s arraignment, Todd had another accusation for his former boss: He was using the case against Grant and Cerissa for publicity. To prove it, he handed out a copy of the 9-month-old search warrant affidavit to members of the press. “Rackauckas sat on two 2016 rape by drug cases by Robicheaux and his girlfriend, in order to stage a high profile arrest closer to the November election,” he wrote in a correlating press release. “My opponent could care less about victims or the sanctity of the criminal justice system.”

This stunt, this handing out of a search warrant that included protected information including the first and last name of one victim and the sexual orientation of another, prompted a ripple effect. Back inside the courthouse, reporters were ordered to turn over their copies and to promise not to disclose its contents. (Later, ABC, The Associated Press, and Sean Emery from The O.C. Register, our “man on the ground in O.C.”, would have this order overturned.)

Outside of court, the victims bristled. The OCDA’s office had promised to protect them, to keep their identities private, and now a man running for that very same office was sharing their names with the media? What else might he do?

On November 6, 2018, less than a month after the amended complaint was filed against Grant and Cerissa, Todd Spitzer was elected Orange County District Attorney. After 20 years and five terms as the county’s lead prosecutor, Tony Rackauckas—the man who lodged the case against Grant and Cerissa in the first place—was out of the job.

Peter Hardin: My name is Peter Hardin. I’m a former Marine Corps officer and judge advocate.

I got out of the Marine Corps in 2013, and went to work as a deputy district attorney at the Orange County DA’s office.

And the time your show airs, I will be officially a candidate for district attorney of Orange County in the 2022 election.

Justine Harman: So, who will be your opponent in that race?

Peter Hardin: Our current District Attorney Todd Spitzer

Justine Harman: Got it. And who was your boss in the DA’s office?

Peter Hardin: Tony Rackauckas, our former District Attorney, who was in that job for almost 20 years 

Justine Harman: Of all the gin joints in Orange County, I was pretty pleased when Peter Hardin walked into mine. Peter has a unique vantage point not only on the criminal justice system in Orange County but also the enduring rivalry between his former boss and his future opponent. His view may be a bit biased, but if anyone has a good read on all the slippery parts of this case, it’s Peter. I asked him to take us back to the beginning.

Peter Hardin: Since 1990, Orange County’s population has exploded by about a million people. And I think what’s most interesting about that timeframe are the demographic changes over these past 30 years. The Asian Pacific Islander community has tripled. The Hispanic Latino population has increased by similar percentages, while our white population here declined by well over 20%. Our African-American and black community has remained relatively steady at around 2%. So, Orange County went from landing on the map, so to speak, as a bedroom community for folks who moved to Southern California in the mid 1950s to work in the aerospace and manufacturing industries, to today where, all of a sudden, we’re the third most populous county in California, the sixth most in the entire US, which has more than 21 states, or the second most densely populated county in the state after San Francisco.

Viewed, I think, in light of that brief history, when Tony was elected to DA for the first time, Tony Rackauckas, that is, was elected to DA for the first time in 1998, he took over the single highest elected office in this county smack in the middle of a time of just rapid and drastic change here.

Tony is no spring chicken. He was born in 1943, and I’m not sure how fully equipped he was to carry the DA’s office into the 21st century. And I’m not sure that he surrounded himself with people who fully understood the dramatic changes that were happening at the time and were able to affect that transition either.

Justine Harman: So why do you think Todd Spitzer won?

Peter Hardin: Well, Todd ran as a reformer who was going to clean up the DA’s office after it became badly mired in scandal following another case, the Dekraai case. Scott Dekraai very sadly opened fire at a beauty salon in Seal Beach, which is on the Northern part of Orange County in 2011, killing eight people. And two of the prosecutors assigned to that case violated Dekraai’s civil rights by using jailhouse informants to get information on Dekraai after Dekraai had already been formally charged and had retained a defense attorney, and it was widely seen as a boneheaded move, because they had him, the prosecutors had him dead to rights on the murders.

This was a big scandal. It caused massive delays that set the case back, I think, six years. And it made national news. I was a deputy district attorney at the time, and it was embarrassing for the office and for the county. Tony’s response was, I think, by the thing was calculus, woefully anemic. He acknowledged that mistakes had been made, but claimed that they were unintentional and no one’s heads rolled as a result. Tony became significantly embattled throughout this whole scandal. And it really opened an avenue for Todd to run as a reformer, which he took every advantage of. Todd said that he would come in and clean house, that he would oust the bad actors and set unethical practices right.

He also ran as the crime victims advocate, saying that Tony had been soft on crime.

There’s a deep, I would say beyond grudge, I think there’s a hatred between those two men, and it wasn’t enough to beat Tony. I think Todd wanted to bury him.

Justine Harman: Todd Spitzer has long touted his role as co-author of Marsy’s Law, or what is known as the California Victims’ Bill of Rights Act of 2008. Despite the search warrant spectacle, protecting victims—and Marsy’s Law, specifically—was a big part of Todd Spitzer’s platform.

Peter Hardin: Marsy’s Law seeks to give crime victims some set of meaningful and enforceable constitutional rights equal to the rights of the accused in a criminal case. So, the biggest one is that alleged victims now have the right to be heard at every stage of legal criminal proceedings. There are 17 enumerated rights that are sort of amorphous and hard to enforce in a lot of ways, but some of them include the right to be treated with dignity and respect throughout criminal justice proceedings, to be notified of his or her rights as a victim of crime, and to be notified of specific public proceedings throughout the whole process.

Marsy’s Law is interesting. It’s obviously well-intentioned, but it’s criticized from unexpected quarters, like some prosecutors and victims rights advocates, because it sort of broadens the definition of victim to include, in some states, any spouse, parent, grandparent, child, sibling, grandchild, or guardian of any person. So, given the huge number of low-level crimes that happen every day, and deputy district attorneys really are inundated with work and cases that come across their desk. Marsy’s law is very expensive and virtually impossible to follow to the letter of the law. So, some groups complained that it can hinder investigations and sort of dilute services for people who really need it most. And defense attorneys in particular have the argument that it can upend the presumption of innocence and give alleged victims a say in the proceedings before it has even been established that there was a crime in the first place.

Todd claims to have authored this law, and I think there is some merit to that, but he was one of many people who was involved in its writing. I mean, there’s an ongoing, I think Todd will take credit for anything positive that he possibly can. There’s a joke here in Orange County that Todd spells God with two Ds at the end. He’s that kind of guy, by all accounts.

Justine Harman: After Todd “With two Ds” Spitzer was sworn in as Orange County District attorney in January 2019, both sides continued the complicated process of discovery, or sharing all pertinent documents with each other, so that each side has the same information.

As co-counsel on the correlating civil suit—the one filed by Jane Doe #5 the same day as the criminal arraignment—Philip Cohen was afforded an interesting opportunity: He was able to depose a wide range of “third party witnesses” who might have intel. You’ll remember that Jane Doe #5—Danielle Bajec—not only sued Grant and Cerissa, but also Grant’s sister and her husband for negligence. Philip Cohen had been been blocked from interviewing the plaintiff herself, due to Marsy’s Law’s protections, so he instead subpoenaed everyone from friends of the other victims to Newport Beach detective Kristen Fox, whose interview we featured in chapter 2. Twice, on June 19 and then again on June 24, 2019, Philip deposed former OCDA Tony Rackauckas.  

Video Clip: Case caption is “Bajec versus Robicheaux,” Cause No.30-2018-01026020-CU-PO-CJC. The deposition is being taken on behalf of the defense. The name of the witness today is Anthony Rackauckas. Counsel, please state your appearances for the record-

Justine Harman: The tone of the June 19th deposition changes often. At times, the defense lawyer and the former prosecutor seem friendly, even jocular, with one another. In other moments, things feel tense.

Philip Cohen: Did you understand that your deposition today was not as Tony Rackauckas, a lay person, such as myself, but as Tony Rackauckas as your role as Orange County District Attorney?

Tony Rackauckas: I believe it would be a former role, so, I am who I am. I’m Tony Rackauckas, and I was the District Attorney. But I’m not now.

Justine Harman: Tony, who attended the deposition without a lawyer, admits that he reached out to friends in the DA’s office to get the subpoena thrown out. He’d had an inkling why Philip Cohen might like to speak with him—and it didn’t have much to do with with any civil matter.

Philip Cohen: Okay. When you got this subpoena, did you reach out to anybody about the fact that you had been served with this subpoena in this civil litigation?

Tony Rackauckas: I did.

Philip Cohen: Who did you talk to?

Tony Rackauckas: I talked to Susan Schroeder and Jennifer Walker.

Philip Cohen: Let’s start with Susan.

Tony Rackauckas: I didn’t even — I talked with Susan Schroeder, and I just e-mailed Jennifer Walker.

Philip Cohen: Okay. So there may be an e-mail out there regarding this in some form or fashion?

Tony Rackauckas: Is that — you think that fits the definition?

Philip Cohen: Well, what did you — let’s talk about what you e-mailed Jennifer Walker about.

Tony Rackauckas: I just told her that I had been subpoenaed, and I wanted her to be aware of that.

Philip Cohen: Okay. And I — and I just thought that the D.A.’s office might possibly want to make a motion to quash.

Okay. Do you have that e-mail?

Tony Rackauckas: I do.

Philip Cohen: Okay. Let’s preserve that among the other things.

Tony Rackauckas: Yes, sir.

Philip Cohen: Did Jennifer respond to that?

Tony Rackauckas: She did.

Philip Cohen: What did she say?

Tony Rackauckas: She said that they looked at that and didn’t — didn’t think they could make the motion because I’m not the D.A. anymore.

Philip Cohen: Why did you think that or suggest that the D.A.s office bring a motion to quash.

Tony Rackauckas: Well, I thought they might want to. As the –as the sitting D.A. at the time and just under the general circumstances usually D.A.s don’t get subpoenaed in a — in a related civil case. And I don’t really have much to offer and so generally I’ve seen those kinds of subpoenas be quashed before.

Philip Cohen: What did you speak to Susan about or e-mail Susan about?

Tony Rackauckas: Pretty much the same thing. I said I was subpoenaed in this case. Because I think she had — and I’ll tell you what it was. She had tried — she had told me that she heard some — third-hand that somebody was trying to subpoena her at an office in Newport. And so neither of us had any idea who it might be. And when I got this subpoena, I assumed it was probably the same parties so I let her know.

Philip Cohen: What did you tell her?

Tony Rackauckas: I told her I was subpoenaed and that it was the — it was the Robicheaux case, and it was a related civil case. And I think they are just trying to get discovery for the criminal case by using a deposition in a civil case. I thought it was an interesting idea; I’ve seen it before.

Philip Cohen: What did she say?

Tony Rackauckas: Not too much. She shrugged. She said, you know, maybe I’ll let Jennifer know. They might want to make a motion to quash; that’s a good idea.

Philip Cohen: Was this in person or by e-mail?

Tony Rackauckas: No, by telephone.

Philip Cohen: How do you know she shrugged?

Tony Rackauckas: It was a shrug kind of message.

Philip Cohen: It sounded like a shrug?

Tony Rackauckas: I didn’t — I didn’t see her shrug.

Philip Cohen: Got it.

Justine Harman: Other than at the very beginning of the nearly-two hour conversation, the matter of the civil suit is not discussed. There’s a whole lot of back and forth like this:

Philip Cohen: By the way, in your experience as a judge, defense attorney and D.A., would it be fair to say that just the filing of a case alone can do significant damage to an individual suspect who then becomes a defendant?

Tony Rackauckas: Yes.

Philip Cohen: And in the case of people who have some type of profile, some type of success, just the filing of the case alone can destroy their personal lives, their public lives, and their business lives?

Tony Rackauckas: Yes, that’s possible.

Philip Cohen: Is that even more of a reason why, before a case is filed, the D.A.’s office should go to whatever lengths they can to make sure that they have a complete and fair and accurate picture as much as possible, prior to even a filing?

Tony Rackauckas: Yes.

Justine Harman: He then presses Rackuackas on the “1,000 women” statement—

Philip Cohen: As you sit here today, do you believe that there are a thousand or so victims of rape depicted on the electronic media from Robicheaux’s house?

Tony Rackauckas: Well, I just don’t know how many.

Philip Cohen: Well, that’s why I’m going to go down the ruler with you. Do you believe there’s about a thousand or so victims of sexual assault/rape depicted on the electronic media?

Tony Rackauckas: I think there probably are.

Philip Cohen: And that’s a thousand victims or so?

Tony Rackauckas: Yes.

Philip Cohen: And what is that belief based upon?

Tony Rackauckas: Based upon discussions that I had with Jennifer Kearns and Mike Carroll.

Philip Cohen: So by the time — at the time that you had left office — and, by the way, let’s just break it down. You left office, I believe, January 7th?

Tony Rackauckas: January 7th, yeah.

Philip Cohen: So I want to do before and after. After you left office, have you had any discussion with anybody about the contents of the electronic media?

Tony Rackauckas: No.

Philip Cohen: So at the time you left office on January 7, 2019, it was your belief that there were approximately a thousand or so victims of rape or sexual assault depicted on Robicheaux’s video.

Tony Rackauckas: Yes.

Philip Cohen: And that conclusion, opinion, has not changed as of today? Tony Rackaucks: It has not.

Justine Harman: Toward the very end of the deposition, Philip Cohen asks the Big Question, the answer to which becomes vitally important to the case:

Philip Cohen: Did you see this case of a thousand victims, a good-looking doctor, a good-looking girlfriend, as being a potential publicity vehicle for you?

Tony Rackauckas:—I certainly expected it to get a lot of publicity, yes.

Philip Cohen: And did you think that that publicity may be helpful to your campaign?

Tony Rackauckas:—Yes.

Philip Cohen: And that was the thought — you wanted to help your campaign, I assume. You wanted to get reelected?

Tony Rackauckas:—Of course.

Philip Cohen: And if there was an opportunity to get publicity to show you doing your job, and you being a vigilant D.A., that is good for your election campaign?

Tony Rackauckas:—Yes.

Philip Cohen: And you saw this case, with the accouterments, as potentially being a very good vehicle; is that fair to say?

Tony Rackauckas:—Yes.

Justine Harman: Next time, on O.C. Swingers.

Todd Sptizer: We also know that some of the women who came forward they were doing it to support the other women—even though they weren’t victims. Because when they heard 1000s of women on video, they wanted to come forward. And you can’t blame them.

Video Clip: I assure you, your Honor, that there was nothing unclear about the moment when I was raped.

Cerissa Riley: I feel like I finally woke up from a bad nightmare. And, I feel like I can breathe again.