Chapter 6: Burden of Proof

CHAPTER 6—BURDEN OF PROOF

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

Justine Harman: Three months after former DA Tony Rackauckas admitted that he thought the case against Grant and Cerissa would garner a fair bit of buzz—

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.

Justine Harman: —his successor Todd Spitzer wrote a six-page letter to California’s Attorney General Xavier Becerra.

The impassioned letter begins, “This is a very difficult letter for me to write. As you know, I inherited an office plagued by scandal and ethical challenges.”

After hearing what Rackauckas and his chief of staff said in their sworn depositions, Todd says he is unable to provide the victims and the defendants with a fair trial. “This is not a close call. It is a blatant abuse of power and misuse of government resources for personal gain by the former administration,” he writes. “There is no doubt that the Orange County District Attorney’s Office cannot legally and ethically prosecute this case.” He also expresses disgust with how the victims have been treated, saying they were “shamelessly exploited” for a publicity stunt.

Less than a week later, he gets his response from the AG: Hard no. “Your primary concern appears to be that the former district attorney and his chief of staff purportedly used misleading information to exploit pre-trial publicity for re-election purposes,” the attorney general’s letter reads. “In fact, assuming the former administration’s actions created a conflict in interest, your election to District Attorney effectively ended that conflict.”

In summation: You’re the DA now. Do your job.

So Spitzer is stuck with it. And because he’s already said that he can’t trust what is in the case file, because it’s riddled with omissions and errors from the previous fame-hungry administration, he does this: He assigns two new prosecutors to the case—Karyn Stokke and Richard Zimmer—to complete a de novo review of the evidence. De novo, as in Latin for “from the beginning.” More than a year after the arrest, and more than three after the first ralleged ape was reported, a new team begins looking into the case against Grant Robicheaux and Cerissa Riley. And on February 4, 2020, Todd Spitzer tries to get rid of the case for good.

Justine Harman: From Justine Harman and Audiochuck, this is O.C. Swingers, chapter six: “Burden of Proof”

On February 4, 2020—while the world was on the precipice of a downward freefall into the pandemic—Todd Spitzer made a shocking announcement. Standing on the same stage where his predecessor first announced the case against Grant and Cerissa, he told members of the press that he can’t prove Grant and Cerissa committed a single crime.

Todd Spitzer: And it’s literally mind blowing. Because it’s one hundred percent contradiction from what my predecessor told you back in September of 2018. There is not a single piece of evidence. Or video or photo that shows an unconscious or incapacitated woman being sexually assaulted. Not one.

After three months review by these top prosecutors, talking to prosecutors who have done a lot of cases…It was mind numbing and mind-blowing. It was about a five hour presentation to get through all of this evidence. It was so overwhelming that I had to say “enough for the day.” This is unbelievable to me how far this case had come.

Justine Harman: He then breaks down a prosecutor’s burden of proof in a rape case with an intoxicated victim:

Todd Spitzer: We have to prove not only that the conduct occurred. We have to prove that the defendants— their belief that there was consent. [Stumbles.] Let me just read it. The defendant is not guilty if he actually and reasonably believed that the woman was capable of consenting to sexual intercourse. Even if that belief was wrong.

We were unanimous. That there was insufficient. We can’t even prove that Robicheaux and Riley engaged in any criminal sexual activity. Whew! I mean…

Justine Harman: Spitzer then offers a series of apologies: First, he addresses to the seven women who came forward—

Todd Spitzer: I need to apologize to the victims. For 30 years I’ve been nothing but a victim’s advocate in the state of California. There’s nothing more difficult than to now have to explain to victims that, because of governmental overreaching, they were used to enhance the facts of the case.

Justine Harman: He’s not calling them liars, exactly. More like…seriously misguided activists.

Todd Spitzer: It was the misstatement that brought 100 phone calls that resulted in the charges of five people. But for that misstatement the likelihood of anyone coming forward was not gonna happen.

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. I am offering every single victim the opportunity to meet with me. I’m gonna make myself available for whoever wants to meet with me. This is a press conference—this is not an official proceeding in the court of law—and I will meet with every single victim who wants to meet with me.

Justine Harman: He then apologizes to the Newport Beach PD—

Todd Spitzer: I need to apologize to the Newport Beach Police Department. Their agency was degraded and chastised for not doing their job. They were blamed for dropping the ball on not bringing these two cases forward. And I apologize to the chief and the men and women of his agency.

Justine Harman: And, finally,Todd Spitzer issues Grant and Cerissa an emotional mea culpa.

Todd Spitzer: I need to apologize to the defendants. [Sigh] What happened to their lives and how this case materialized is nothing short of a travesty. Based on the evidence and the manner in which this case unfolded, this office could not ensure a fair trial for the defendants or meet its burden of proof.

CBS Los Angeles video clip: “Perhaps, most importantly, Todd Spitzer announced that he is announcing all of the charges against this pair due to a lack of evidence.”

Justine Harman: After Todd Spitzer publicly apologized to Grant and Cerissa, anyone who had been following the case had the same thought: It’s over. Rarely does a DA suggest charges get dropped and a judge says, “No thanks.” Grant and Cerissa were so optimistic that the court would honor Spitzer’s request to dismiss, that they sat down for an exclusive interview with Good Morning America.

In the four-minute segment, Grant and Cerissa sit holding hands in complementary outfits: Grant in a burgundy plaid shirt and Cerissa in burgundy blazer over a white blouse. They say their lives have been ruined. They were kicked off their ride share apps. And they’ve been getting death threats. Grant says he fears for his life every time he walks his dog, because he’s worried someone will shoot or stab him. Thank God, they say, it’s all over.

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

Kayna: This morning Newport Beach doctor Grant Robicheaux and his girlfriend, Cerissa Riley, are speaking out for the first time. 

Grant Robicheaux: Just still in shock…

Justine Harman: At one point, the reporter asks,” As more women started coming forward, though, did you ever think, in your own mind, Did we cross the line at some point?” “Absolutely not,” Grant says. “Never, ne-ver” Cerissa says, shaking her head.

The very same day that the redemptive Good Morning America segment beamed into living rooms across America, Grant and Cerissa were back in court for what the expected dismissal hearing. They arrived holding hands—Grant in a gray suit and striped tie, Cerissa wearing burgundy pants, a white top, and a long cardigan. They were smiling.

The OC Register’s Sean Emery, our “man on the ground,” remembers a shift in the courtroom energy that day:

Sean Emery: I don’t want to read too much into this, but they tend to, for the most part, seem pretty guarded publicly. They seem to do a pretty good job not being … I’m trying to think the right words for it. They’re hard to read, I guess, would be the thing. You can certainly see, and I think the photos show this at their first arraignment, especially Riley was pretty emotional and Grant was the more stoic one. He really has maintained that throughout, at least that I’ve seen in public.

Just having seen them just walking, I do think they appeared to be in a little better mood the day of that hearing that we’re talking about, the February hearing. They seemed to be a little bit looser, they were hugging family members and they were smiling.

You can see in some of our photos as they come in the courtroom, they’re smiling at each other. I think the obvious thing is that they probably assumed the judge is going to approve it.

Justine Harman: Judge Jones began the hearing by saying, “This matter was put on calendar, Mr. Spitzer, at your request. We received rather short notice of your desire to calendar the case for today’s date. And I think it’s pretty apparent, the reason that you’re asking to have this case heard today is that you’re asking the court to dismiss the complaint.”

Yes, your honor, Spitzer says. And together they walk through the paces of the evidence.

Judge Jones asks for details on the items seized during the search. Officers found ammunition. High-capacity magazines. Firearms. MDMA. Mushrooms. Coke. GHB, yes?

Yes, the prosecution confirms. Jones asks: “Did you take into consideration the corroborating value of the drugs that were found when the warrant was executed in deciding that there is no evidence here?”

Deputy DA Richard Zimmer answers: “We absolutely did your honor, yes.”

Ultimately, Spitzer tells the court, the thing they cannot prove is that Grant and Cerissa were aware that any of these victims may have been to drunk or intoxicated to consent. They very well may have been—Jane Doe #3’s toxicology report suggested as much—but they don’t have proof that Grant and Cerissa knew it at the time. Spitzer addresses the court: “The fact of the matter is that based on what was said by each of these victims, based on other evidence that we have regarding these incidents, your honor, the proof that we have that Dr. Robicheaux and Cerissa Riley did not reasonably believe that these women were capable of consent is woefully insufficient to prove it beyond a reasonable doubt. We can’t do it.”

Then, two victim impact statements are read. Mike Fell, who represents the victim whose screaming prompted neighbors to call 9-1-1 nearly three and a half years earlier, reads a statement. “I know in my heart of hearts that I was sexually assaulted that night,” it begins. “When I was informed that the charges were going to be dropped I felt victimized all over again. I felt failed by the system.” But now, she says, with what she and her lawyer assume will be the conclusion of the lengthy legal inquiry, “I will finally be free and allow myself to heal.”

Then an advocate reads a letter written by Jane Doe 1. What you’ll hear next are portions from that impact statement, read by an actor.

Jane Doe 1: One of the worst days of my life was when I was raped by Grant Robicheaux. It is difficult to describe what I have gone through as a result of this experience. I initially did not report the incident. I was a first-year law student and terrified that reporting this would impact my future career. I was even more concerned that it would break my father’s heart. I was scared that people would judge me for even being in that situation. I was scared no one would believe me. While I was concerned that Robicheaux would do this again and with the fact that he has access to drugs that could incapacitate a woman given he is a doctor, the risk of reporting seemed too high. I was working full time and in an evening law school program. I did not have the bandwidth to take it on. I suppressed this horrible experience in the recesses of my mind for 9 years. I did my best to never think about it.

Justine Harman: She says she was at work when she saw Grant’s mugshot online. She was in shock and then she felt something else: guilt.

Jane Doe 1: After hours of deliberation, I contacted the OCDA and said that I was a “witness.” I assumed that my claim would be time barred, but I could testify as to Robicheaux’s character. I could confirm that Robicheaux is a psychopath, and that was the least that I could do for the victims— help them establish their own cases.

I was interviewed by Jennifer Kearns, a kind, supportive, and thorough DA investigator. When I gave her my statement, with the exception of my closest friend, it was the first time that I told anyone the details of what happened that evening. I struggled using the word “rape” because it made me sick. I gave Jennifer Kearns my emails and online communications that established I socialized with Robicheaux and that it abruptly ended after that incident. She listened to me.

She was professional, and it was obvious that she cared.

After I provided the statement, I did not hear from the OCDA’s office for a week or two. When they did call me, they asked if they could bring charges on my behalf. I had not even considered charges being brought on my behalf because, again, I thought my claims would be time barred.

I agreed that they could.

I cried afterwards because I felt heard and believed. I also for the first time processed that I had been raped, and the events of that evening that I had successfully buried for so long were constantly replaying in my head. I felt dead inside. I frequently found myself with tears streaming down my face in the middle of the day as I was working. My emotions were completely uncontrollable and it was hard, but at least there would be justice.

Justine Harman: In her over-20 minute victim impact statement, Jane Doe 1 describes what happened after the defense began issuing subpoenas for the civil case. She says she and her family were harassed by agents deployed by the defense:

Jane Doe 1: Robicheaux and his partner hired attorneys Thomas Ferlauto, Shawn Holley, and Philip Cohen to defend him in the criminal case and civil case. (There was a civil case brought by another victim with respect to a different incident involving Robicheaux.)

Thomas Ferlauto and Philip Cohen retained a private investigator, Russell Greene, in connection with the criminal case. On November 6, 2018, Greene called my office nonstop. I did not answer his calls because I was trying to keep my composure at work: in fact, I was in the middle of a deposition when he began what can only be described as a campaign of harassment.

Thomas Ferlauto and Philip Cohen retained a private investigator, Russell Greene, in connection with the criminal case. On November 6, 2018, Greene called my office nonstop. I did not answer his calls because I was trying to keep my composure at work: in fact, I was in the middle of a deposition when he began what can only be described as a campaign of harassment.

Justine Harman: Jane Doe 1 says Greene threatened to show up at her office, which forced her to tell her employers about the case. She was an hour late to her wedding dress fitting that day, and was so rattled that she forgot to bring her shoes. But she wasn’t his only target.

Jane Doe 1: For me to recount every detail and every incident involving my innocent parents, this statement would take an hour to read. Instead, please accept the following highlights of what they put my family through.

On Sunday, November 18, 2018, a woman arrived at my parents’ home and told my mother that there was a gas leak coming from our house. There was not.

Later that day, at around 7:00 p.m., my father arrived at his home. Shortly thereafter, a woman arrived looking for me. The woman stated she was a friend of mine “from the neighborhood.” I am very close to my father, he knows all of my friends, and he was immediately suspicious. At this point, my father was extremely upset because he did not know the woman and grew concerned for my safety. The woman eventually left.

Please understand, after I had been raped, I went through a time of profound thought, and I made the deeply personal decision to not inform my parents about what happened to me. It is difficult to describe my feelings, and it may sound strange, but I wanted to protect them from the emotional burden of that terrible night.

By the evening of Sunday, November 18, 2018, my parents were beside themselves with worry. They did not know who these people were or why they were looking for me. They did not understand their rudeness. Above all, they feared for my safety. After a heart-wrenching decision to protect them from all of this, I was forced to tell them what happened to me.

I had to tell my loving, caring, and protective father that I had been raped. This was terrible for him. I explained the pending criminal case and my involvement. I cannot express how difficult it was to listen to my father absorb what I was telling him. He is a kind and fundamentally good man. He did not deserve this.

Justine Harman: Finally, Jane Doe #1 turns her attention to the Orange County District Attorney’s Office:

Jane Doe 1:  As a victim of a violent crime, I am entitled by law to be given notice of any critical developments in the case. A decision to dismiss certainly seems like such a development. Despite this, I learned of Todd Spitzer’s decision less than 10 minutes before the press conference on February 4. I was notified by a victim’s advocate from his office. This woman was very nice, but could not provide any answers about how this decision was made. Less than 10 minutes. Is this really a meaningful opportunity to be heard? Is this really what the law contemplates when it addresses a victim’s right to communicate with the prosecution BEFORE critical decisions are made? Less than 10 minutes.

During the call, I was also informed by the advocate that I could speak to Mr. Spitzer after he was done with his press conference. This was the first time that I was given the opportunity to speak with Mr. Spitzer. How can any lawyer, much less a prosecutor invested with the public trust, make such a critical determination about the credibility of a witness without even meeting them

Mr. Spitzer never met me. Mr. Spitzer never spoke to me. But Mr. Spitzer held a press conference and questioned my credibility on national television. This is a man who is supposed to be on the side of victims. He is a man to whom every victim of sexual assault in Orange County must place their trust.

Less than 10 minutes.

I told the victim advocate that I wanted to speak with him. I wanted to speak to the man who determined, without having ever met or spoken to me, that I would not be believed. Did he think the case could not be proven, or had he made the unilateral decision that I had not been raped

On February 4, I spoke to Mr. Spitzer at 3:15 pm. His tone was formal, and he had over 5 people on the call with him. I wanted to understand why this was happening. I wanted to understand why he believed there was no evidence of a crime when there are seven charged victims in this case. Do the victims not corroborate each other? Were drugs not found in Robicheaux’s home? What about 911 calls?

Mr. Spitzer offered to give me a copy of the PowerPoint he had already shared with America. This is the same presentation where he apologized to the man who raped me.

Mr. Spitzer spoke about his political predecessor and other issues that were not helping me to understand his decision.

When I asked Mr. Spitzer why a witness statement is not evidence of a crime, he told me that he felt I was truthful, which was in hindsight, intended to soften the blow that he was about to deliver. He started to run through my story and, in short, pick it apart. The man that campaigned as a victim’s advocate was doing what I had pictured the defense attorneys would do at trial. He diminished my story in front of room full of strangers with me on speakerphone and, in effect, told me that it was unclear whether I consented to sex.

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

Justine Harman: Throughout the course of my reporting, I have tried to get in touch with as many of the victims as I could. I was able to personally speak with two, while my producer Josh spoke with a third. I have been able to identify two more—which shows just how porous the system really is.

In April, after the first few episodes of O.C. Swingers aired, I decided to send Jane Doe #1 a draft of this episode, in case she might prefer to read her own words.

After two days of silence, she texted me: “I binged your podcast. Admittedly got a little teary eyed listening to my own victim impact statement. Ha. I was on such a mission when I wrote it and had such little time to put it together that I didn’t process it.” She said that while she still doesn’t want her voice on this series, she thought I should include a portion of her statement I’d originally left out. This part:

Jane Doe 1: Your honor, today I not only wanted to detail what has happened to me since reporting this crime, but I also wanted the opportunity to respectfully request that the Court take some time and consider not dismissing this case. There is no reason this weighty decision needs to be made today. At least, with the Court, I will know that someone listened to me, and considered what I had to say before making such a profound decision. While I understand the difficult position of the Court, I have looked into this issue and know there is California precedent for denying a prosecutor’s motion to dismiss.

Justine Harman: Harman: More specifically, she said, this part of the statement was the most important:

Jane Doe 1: I have looked into this issue and know there is California precedent for denying a prosecutor’s motion to dismiss.

Justine Harman: Boom. In 1997. The People v. Angelo Buono, the famous “Hillside Strangler” case, when the prosecution’s motion to dismiss for insufficient evidence was denied by the judge.

This is the first time anyone in the courtroom had put this simple fact before the judge. This is a rape victim, whose constitutional right it is to be heard at every step of the case, using over 3,000 words of personal and painful testimony to deliver a simple message: You don’t have to do this, judge. You know it. And I know it.

She told me: My goal was to give the court a reason to deny the motion. Just in case he was inclined. No one else had put forth that argument, and a judge—generally—needs someone to make the argument to give him grounds.”

So Jane Doe #1 was that someone.

Remember how she said she was “working full time and in an evening law school program” when she was raped by Grant Robicheaux?

Yeah, well, that was back in 2009. Jane Doe 1 is a lawyer now. And she’s just not letting this thing go.

Jane Doe 1: I know what happened to me. And I firmly believe there is powerful evidence of a crime here. There are 7 victims with their fingers pointing at Robicheaux. Mr. Spitzer also cited lack of video evidence as a justification for dismissal. I am curious how many sexual assault crimes are actually committed on video. When did video become an element for a crime virtually always committed in the dark? How many sexual assault cases are successfully prosecuted by his office with a single charge, and no corroborating victims?

I know what happened to me, and nobody (on a conference call no less) can tell me I’m wrong.

Justine Harman: At the conclusion of the reading, Judge Jones addresses the prosecution. He asks, “Have any of you folks talked personally to victim number one other than the telephonic conversation that was referenced?”

Yes, they say, they have been in touch with her throughout the course of the investigation.

“I just want the court to understand, it’s not that we don’t believe her,” says DDA Richard Zimmer.

Judge Jones cuts him off: “But a jury might believe her…There’s an awful lot of rape cases that I have been involved with on all sides where it’s a one-on-one case. If you have a very credible victim,” he says, “they can convince a jury that in fact they’re telling the truth.

Everyone in the court was a bit stunned. Not only by the words of Jane Doe #1 or the judge’s comments, but by something else that happened.

Before the statement was even read, Grant Robicheaux stormed out:

Sean Emery: He left the courtroom at one point. Yes, [inaudible 00:11:18] in February. This was a point where the statements from some of the women, the alleged victims, were being read and he got up and left and just abruptly left the courtroom and the gentlemen who they use as, I think he’s their investigator and their security, he got up and stood by the door, I guess, presumably in case anyone went out, although no one did. So I don’t know what would have happened if anyone had actually tried to walk out. She remained behind.

A lot of us, and I think DA’s office and I think obviously the defense themselves, thought that after Spitzer announced the intention to drop it at the February hearing when the judge got it, that it was basically going to be, the judge would approve it. That would be that, and that didn’t happen obviously.

Justine Harman: After each party had their say, Judge Jones spoke: “We have had politics mixing with prosecution at every stage of this proceeding,” he said. “Past district attorneys. Current district attorneys. Politics have infected this case.” He asked that each side put into writing the set of facts they’d expect to present at a jury trial.

The documents would be filed under seal, and Jones himself would make a final evaluation once he had all the facts. The deadline for the submissions would be March 19, 2020.

Despite the headlines and a celebratory segment on Good Morning America—

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

Justine Harman: —and a text from Grant and Cerissa to private investigator Russell Greene that read, “You saved our lives!!!! Thank you for everything!!! Can’t wait to celebrate!!!”

February 7, 2020 was not a day of celebration for Grant Robicheaux and Cerissa Riley. Except no one ever really noticed. The fact that Grant and Cerissa weren’t actually off the hook took a backseat. Because all of a sudden there were bigger stories coming out of Orange County.

Vide Clips: Orange County COVID-19 Headlines 

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