After Judge Jones refuses to dismiss the case, the prosecution and the defense find themselves in an unlikely alliance.
“It’s almost like there’s going to be a pre June 5th, and a post June 5th, right?”
CHAPTER 7—O.C. Justice
Justine Harman: A listener’s note: The following 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.
Operator: Thank you for calling the law office of Michael [tone, ring]—
Mike Fell: Hey Justine, how are you?
Justine Harman: Good! How are you doing? Sorry I’m a few minutes late.
Mike Fell: That’s okay. That’s okay. I’ve got just a limited amount of time, but I’m happy to chat with you. And like I said yesterday, if you want to record, that’s fine as well.
Justine Harman: OK, well that’s great—thank you so much—let’s get into it. How are you feeling about what’s going to happen on Friday?
Mike Fell: Well, I mean, there’s… it’s a little bit… there’s a little angst going into it of course. The fact that it’s going to be done virtually because of COVID. We’re going to be sitting here on the computer, watching the court make a ruling on this tantamount case, which is of the utmost of importance, obviously to the victims and to everybody involved. So yeah, I’m very anxious.
Justine Harman: From Justine Harman and audiochuck, this is O.C. Swingers, chapter seven: “O.C. Justice”
Of all the players in this case, of which there are—let me count—two defendants, three defense attorneys, seven victims and one formal witness, two victims’ attorneys, and a rotating roster of judges and—OK, I lost count—Mike Fell is likely the warmest. You might recognize his voice as Gina’s empathetic DUI lawyer on Real Housewives of Orange County.
Mike is a former DA guy too—and the attorney for Jane Doe #4, the woman whose screams prompted 9-1-1 calls all the way back in chapter 1. When we connected two days before Judge Jones was scheduled to make his big decision, he seemed genuinely flummoxed about what might happen next.
Mike Fell: My understanding is that it’s going to be a pretty straightforward ruling and I don’t know that it’s going to be a long hearing because the judge has said, “Hey, I’ve already heard all the arguments on the case. I’ve received briefs from everybody involved in the case.” And Friday at 9:30 is basically just for a ruling.
Justine Harman: Like me, Mike had been trying to decipher the clues from the past few days. After ordering that all of the briefs remain sealed, Judge Jones surprised everyone by making filings from both the victims and the prosecution public.
It seems to me if the judge wanted to unseal these briefs, it’s gonna go to trial. That’s kind of how I’m feeling.
Mike Fell: I hope you’re right. I hope you’re right. I’ve known Judge Jones for a long, long time. I knew Judge Jones before he was a judge, before he was on the bench as a commissioner. And I have the utmost respect for him, and regardless of his ruling, I have the utmost respect for him. But I can’t read it. I can’t read it at all. I mean, believe me, I’ve definitely spent quite a bit of time thinking about what does this mean and what does this mean? And you just don’t know. And that’s kind of part of the angst, if you will, of being an attorney, even when you’re in court before a judge rules, a lot of times a judge will say, “Well, my feelings about this are blah, blah, blah, blah.” And you’re thinking, oh my gosh, he’s going to rule against me. And then he says, “But on the other hand, blah, blah, blah, blah.” And then I think, oh great, he’s going to rule for me. And then you never know. And then finally the judge rules, and then you find out, but most judges are very, if you will poker face about what they’re going to do.
Justine Harman: I’ve read through a lot of the depositions that have been conducted via the civil suit. This is pretty contentious between all sides. You can read the sneers between the lines. Is this your typical experience?
Mike Fell: No, no, none of this is a typical experience. I mean, my background, I spent over 18 years in the District Attorney’s office. I now represent individuals who are accused of crimes doing criminal defense. And I probably do more victim rights representation under Marsy’s law than any other attorney in California. So, no, I have not seen a case in a long time that’s this contentious all three ways. So right now you’ve got kind of the … It started out obviously where you had the prosecution and the defense, and that was pretty contentious against each other, right? Then I got involved in the case and it was kind of like the prosecutor and myself were on one side and the defense was on the other side. Right? Then, within the last few months, it’s now become, you’ve got the prosecutor and the defense on one side, right? With a whole new defense team. And then you’ve got Mr. Murphy and myself representing five of the victims totally on the other side. So it’s very unusual, extremely unusual.
Justine Harman: So, how is your client doing?
Mike Fell: I mean, she’s also extremely anxious. Not having the legal training, she’s holding her breath until Friday. I mean, she and I have had a lot of communication with each other and we’ll kind of … It’s almost like Justine, there’s going to be a pre June 5th, and a post June 5th, right
Justine Harman: Sure.
Mike Fell: As far as how people are thinking, how people are preparing, how people are emotionally sitting, right? So right now we’re pre June 5th waiting to see, will the case go forward? Will the case end? What’s going to happen. And so you’re kind of on pins and needles. And then after June 5th, is there going to be total elation? Is there going to be total grief? Is there going to be total stress? And you can kind of say that on everybody’s side, you know what I mean.
Justine Harman: Yeah. I can’t tell if I think June 5th is the end, the beginning.
Mike Fell: Yes, yes. That’s a great way to put it. That is a great way to put it. And June 5th necessarily wouldn’t be a beginning, it would be continuing. So is June 5th a continuance of what started a year and a half ago? Or is June 5th the end of what happened for many of these women, many, many years ago?
Justine Harman: Yeah. I mean, I hope it’s not the latter that would feel hugely disappointing.
Mike Fell: And of course, obviously, as do I, as do I. Our position is this, and being a former sexual assault prosecutor for the Orange County District Attorney’s office, okay? Sexual assault cases are very, very difficult to prove. Most of the time you don’t have other witnesses, it’s not like somebody that’s coming in and going into a bank, holding a gun, and you got 50 witnesses that see these people, right? And you’ve got maybe people seeing the getaway car, and the license plate, and a description of maybe a heightened way, or if they wear a mask, and the DNA from the mask, you know what I mean? Like in those types of cases, there’s a lot of different evidence. When you’re talking about sex cases, whether it be child molest cases, whether it be rape cases, whether it be spousal rape cases, whatever the case may be, okay?
Usually, there’s two witnesses, the perpetrator and the victim, and many times it ended up very, very difficult to prove. And in every single rape case, okay? Every single sexual assault case, there are two defenses and only two defenses. One is, I didn’t do it, wasn’t me, right? You got the wrong guy. And the second defense is it was consensual, that’s it, there’s only two defenses, okay? So in this case, since they’ve been identified, since all the facts are known, the only defense they have is the consent defense. And that’s of course what they’re going with. At our position, on behalf of the victims is, if you feel that this was consensual, then guess what? Let the victims tell their story, let them tell their story.
Justine Harman: Sometimes, wading through this case—and the actual physical heft of its countless court filings—has been overwhelming. I thought a lot about my own experience with a culture that doesn’t know how to talk about rape. Even though one in six women in America has been the victim of an attempted or completed rape in her lifetime. I remember that night in college when one of my close friends came home with a story about being sexually assaulted in an alleyway, and not knowing what to do. Being uncomfortable.
Rape doesn’t get discussed because it turns women into victims and men into animals. The same men and women who have jobs and lovers and mortgages and get haircuts and say “cheers” with their friends and smile for pictures.
I started working on this podcast at a pivotal moment in the case’s history: right when Spitzer tried to have the charges dismissed last February, right when Covid hit. Twice in the three month period I spent hunkering down with my husband, our two small children, his parents, and his 94- year-old grandma in rural Maryland during that original period of confusion and universal paranoia last spring, I went to FedEx to print hundreds, then thousands, of pages of court documents from this case.
I ordered large butterfly clips on Amazon and wiped down their boxes with disinfectant. After my kids went to bed, I Googled obscure legal terms and harassed my niece Rachel who is a lawyer, but definitely not a trial attorney, to explain them to me. And then I watched Tiger King.
This case—and all of its moving parts—became not an obsession, exactly, but a litmus test for my ability to make sense of things. More than one friend suggested I make a Carrie Mathieson “crazy wall” to keep everything straight. I guess you’re…listening to it?
Honestly, you really haven’t lived until you’ve been a fly on the wall in a digital courtroom during Covid:
Mike Fell: I don’t know if anyone can hear, but mine completely froze—
Philip Cohen: Your honor, can you hear me?
Judge Jones: I can hear you.
Justine Harman: On June 5, 2020, Judge Jones made his ruling: He would not be dismissing the charges against Grant and Cerissa. He filed a 25-page brief outlining the many ways he felt that the DA’s request was sketchy. “A motion by the people to dismiss a 17 count rape/ kidnapping case involving seven alleged victims and carrying a life penalty, prior to any evidence being presented, is not common,” he wrote. “It is even more suspect when made by an incoming District Attorney in the aftermath of an extremely contentious election.”
He presented the scope of the charges against Grant and Cerissa alongside his own assertions on why it matters that Robicheaux is a licensed doctor. “There are few, if any, professions held in higher esteem than that of a physician,” he wrote. “People put their lives in the hands of their physicians. Logic and common sense would indicate that the alleged victims in this case put their trust and confidence in Robicheaux, given his social stature. This trust makes the potential victim even more vulnerable.” He concluded: “Any objective analysis of this case leads to the conclusion that these charges should be put before a jury. A backroom dismissal by prosecutors without the alleged victims ever having the opportunity to be head is contrary to the core values of our legal process, and the interests of the public.”
In the following weeks, the cast of characters reconvened over Webex, the court’s version of Zoom, to review a myriad of new issues. Since Judge Jones’ ruling, the defense tried and failed to get him ousted from the case by saying he had been partial to Matt Murphy. When the request was denied, the defense made the court aware of a “sizzle reel” miraculously unearthed by Spitzer’s office. In a two minute pitch deck for a show called Orange County Justice, Tony Rackauckas, his chief of staff Susan Schroeder, and Matt Murphy himself are positioned as rights crusading reality stars.
Tony Rackauckas: Matt Murphy is a very talented trial attorney.
Susan Kang Schroeder: Good looking, charming—all the girls love.
Matt Murphy: Through your verdict, I’m asking you to set this right—
Justine Harman: If there wasn’t evidence before, the defense offered, how do you watch something like this and not think everyone involved in the filing of this case is in cahoots? The logic is thin, but it did make me wonder: Is everyone in Newport eyeing a side career in reality TV? The defense also began lobbying to get a preliminary hearing on the calendar, even though they’d long ago waived their right to a speedy trial. All of the contradictory motions created a bottleneck, which was perhaps their purpose. On June 19th, an interim judge announced that the future of the case wouldn’t be decided until Friday, August 7, 2020. Both Grant and Cerissa were ordered to be present in court that day, regardless of COVID-19 precautions.
Judge Jones: First of all, if anyone has any difficulty hearing me, please let me know. These masks obviously make it somewhat problematic in regards to communicating. I’m also going to ask on behalf of the court reporter, that everybody speak loudly and slowly. The court reporters generally look at people’s faces to try and read lips to assist in their understanding and comprehension, so please keep that in mind
I have read and reviewed the documents that have been submitted by the defense and the people. It is my understanding Mr. Zimmer, Mrs. Stokke, the people are taking the position that they have an irreconcilable conflict and that you are requesting that the court refer this case to the attorney general’s office for further prosecution.
Richard Zimmer: That’s correct Your Honor. May I be heard on that?
Judge Jones: Yes.
Richard Zimmer:Thank you. Your Honor, the OCDA agrees that because of irreconcilable conflict, since the court has denied its motion to dismiss. The OCDA has remained steadfast in its belief that the evidence is insufficient to prove the charges beyond a reasonable doubt. The people do believe that the court has the inherent authority under California code of civil procedure 128 subsection five to send this matter to the attorney general. But we also believe that the court has an inherent authority under that same section to disqualify Orange County district attorney under penal code 1424.
Justine Harman: There’s a whole bunch of legal jargon being tossed around, but the DA’s office is saying that while their position remains that there is insufficient evidence in the case, they’re just the absolute wrong people to prosecute this thing. Full stop. They cite some California penal codes that further corroborate their position—
Richard Zimmer: The people do concede that under penal code 1424 that the Orange County district attorney is disqualified for a couple of reasons. First of all, 1424 entered for disqualification is that a conflict of interest exists, rending it unlikely that the defendant would receive a fair trial.
Justine Harman: But basically they’re just begging to be fired.
Richard Zimmer: We believe that based on our current position that the defendant would not receive a fair trial if we were to remain on the case for a couple of reasons. Number one, forcing the OCDA to proceed a case when we believe that we cannot ethically do so. We believe and have repeatedly stated that we cannot prove this case beyond a reasonable doubt, is in itself unfair to the defense to have a prosecution forced to proceed where we have gone on record saying that we don’t believe that this is a viable case. Number two, the Orange County district attorney’s position that this case cannot be proven beyond a reasonable doubt is in fact a position favorable to the defense. That by definition is not fair, so we cannot give them a fair trial.
Justine Harman: The defense tries, once again, to insist that the case should never have been filed in the first place. And to position itself in agreement with the current DA and his officers and in direct opposition of the previous DA and the alleged victims.
Phillip Cohen: I don’t think it matters, and I can certainly get into it, I don’t think it matters whether the district attorney acquires or not. An unlawful act is not made lawful by the DA’s failure to object or choice not to object. So I am unaware of any preclusion that would prevent a defendant from objecting to a court’s action in any type of criminal proceeding where the defendant’s constitutional rights and liberty are at stake.
Justine Harman: Cohen starts pulling out all of these deep cut legal references, giving me all kinds of unhinged Good Will Hunting vibes—
Phillip Cohen: Let me ask, where does the court get the power or authority under 128 to disqualify a district attorney, if not under Greer?
Judge Jones: Under 128 subsection five.
Phillip Cohen: Your Honor 128 is this amorphous section that basically says the court can do whatever it wants.
Judge Jones: Mr. Cohen, we could go on and on with this forever and we’re not going to do it. I’m going to make findings. If you don’t like them, you can take whatever appellate remedy you want to take.
The long and the short of it is that I have serious questions about the district attorney’s ability to prosecute this case at this point. I think that they are hopelessly conflicted. They have indicated that they will not proceed on this case, do not want to proceed on this case, and cannot proceed on this case.
Accordingly, I am going to order that they be disqualified and recused from further representation of the people of the state of California on this case. And pursuant to that disqualification, I am going to order that the case be referred to the attorney general’s office for prosecution. I am going to order that the district attorney’s office provide all discovery materials to the attorney general and the entire case file, so that they can be prepared to prosecute this case in an expeditious fashion. It’s obviously an extremely old case and it needs to proceed.
Justine Harman: Cohen interjects once more.
Philip Cohen: The court has made no findings or indication regarding any malfeasance by Mr. Rackauckas’ office, which was the impetus for the entire domino effect that fell. The court has never in this case, and I want to be clear, Mr. Rackauckas stated to a national audience, there were a thousand victims of rape on video. He repeated that statement under oath in his deposition, which I know the court has read.
Judge Jones: No I have not.
Philip Cohen: Oh, well the court cited to the deposition.
Judge Jones: No I didn’t. I said, I made reference to Mr. Spitzer’s comment in one of his press releases.
Phillip Cohen: Mr. Spitzer quoted from-
Judge Jones: Let me finish.
Phillip Cohen: Sorry.
Judge Jones: It states in the February 4th press release that Mr. Rackauckas used the case to garner media attention. That’s not exactly what he said. He said that he thought he would get media attention.
Justine Harman: I looked back at the press release. It says: “After Rackauackas admitted in a sworn deposition on June 19, 2019 that he had used the case to garner media attention to help his re-election campaign, Spitzer ordered a complete reevaluation of the case.”
But what Rackauckas actually said was:
Tony Rackauckas: I certainly expected it to get a lot of publicity, yes.
Justine Harman: The correct wording ran in the LA Times, CBS LA, O.C. Weekly, and elsewhere.
Phillip Cohen: Your Honor, if the court hasn’t read Mr. Rackauckas’ deposition-
Judge Jones: It’s not part of the record. I’m not going to read something that’s not part of the record.
Phillip Cohen: Yeah, but how does the court know what he said?
Judge Jones: I didn’t read the transcripts.
Phillip Cohen: Your Honor, you’re maligning Mr. Spitzer’s reference to Mr. Rackauckas’ deposition, saying that’s not what Rackauckas said. You’ve told us you haven’t read his deposition.
Judge Jones: I have not.
Phillip Cohen: I not only read it, I took it! I know exactly what was said, and I would invite this court, if you’re going to start throwing out issues of malfeasance, that the court should take a look at the Rackauckas deposition to begin with.
Justine Harman: I don’t know how much you had going on back in August of last year, but for me, this hearing was pretty much the social event of my life. While I watched on my laptop, I feverishly took notes and texted with Matt Murphy, the lawyer for Jane Does 1, 6, 7 and 8, who was in court. Masked and socially distanced in the juror’s box, but in court.
Me: This is hard to watch.
Matt: My question is if there was a hippie train robber in the old west, how jealous would he be of Philip’s funky fresh face covering?
Justine Harman: I swear, the fratty digs between the lawyers in this case never stop. You cannot get three sentences into a brief without someone calling someone else an absolute jagoff.
Once the hearing was over, I called Mike Fell for a play-by-play and caught him in his car on the way back to rejoin a family vacation.
Justine Harman: That was insane, watching that from home. I was so uncomfortable. I’ve never seen anything like that.
Mike Fell: Well, this is going to be one of the most interesting cases from every legal perspective, every factual perspective, probably that I’ve ever been involved in my 30 plus years. I think judge Jones is, that you can hear him making his ruling. And I think that he was more than prepared. And I just thought that he was, but he’s just wonderful judge. And I thought that he really came back with some extremely strong arguments to counter the defense’s ridiculous arguments that might have [inaudible].
Justine Harman: How is your client feeling? Does this feel like the first development in a while that feels like maybe this is actually going to end up in justice?
Mike Fell: Yeah. And you know what, Justine, I’m so glad you asked me that question. Because with all the legal quagmires that are going on, sometimes we lose sight of who the actual victims are. And you know what’s interesting about that, is that I just got off the phone with her right now, and she was so happy. I mean, it was so devastating, first of all, what happened to her and how she was victimized was so devastating. And then years later, finding that somebody really cared, and the case was going to get prosecuted. All of a sudden this restores her faith in humanity and restores her faith and the justice system.
Justine Harman: But what happened between all the people in that room? What was the vibe like?
Mike Fell: Well, I know, at least for myself, and Mr. Murphy, who represents the most of the victims in the case, we got up and we left. I mean, Mr. Cohen was, he was drowning, trying to hang on to any stick that he could. The problem is the sticks that he was trying to hang onto weren’t even realistic sticks. There was nothing there.
Justine Harman: This is such a strange, surreal thing that we’re kind of, now I’m party to as well. It’s a…
Mike Fell: Yeah, no, he looked, he looked like Jesse James up there.
Justine Harman: It was a choice.
It was about an hour of proceedings, how were you feeling?
Mike Fell: Well, I had a myriad of emotions. Number one, I was very pleased because I saw where this was going. I saw the ultimate ruling being made by Judge Jones. I thought he was on point. And I was very pleased for my client, in regards to that.
I’m hoping that we can focus more on the case now than on the what people have alleged, the political turmoil. I don’t think there’s any place for that. And I don’t think, that’s not fair to my client in any way to be focusing on the cases being prosecuted or the cases not being prosecuted because of any political issues My position is the case being prosecuted because my client was horribly attacked and assaulted. That’s why the case is being prosecuted.
And I just want to add, if I may Justine, like I was saying before, my client, I think what happened today did really help my client in her restoration of her faith in the criminal system. Because remember, this was somebody that was attacked, case went away for two years, then the case was prosecuted. It was being prosecuted for about a year. Then there was a decision to dismiss the case. Then there was arguments as to whether the case should be dismissed or not. Then she was elated by the fact that the judge decided that the case was not being dismissed. Then she was taken down on that rollercoaster again with a defense trying to say that the judge was, should be recused and was acting improperly. And then her faith was restored again when an LA judge said that “no, defense was wrong.” And again, with her faith restored again by the ruling today. So it’s been quite the unpleasant journey for her, but I think today was really a highlight in it. Talking to her on the phone, she was so happy, and it was so nice to hear her that way.
Justine Harman: I was excited for the women in the case. To me, this felt like a step in the right direction. But with this case, nothing is ever as it seems. I decided to check back in with my Man on the Ground in the O.C. for his take. Here’s Sean Emery.
Sean Emery: I think you could tell the tension that’s been rising, especially from the defense side in that they’ve been, oddly enough, a little bit on the sidelines for the last few months. Because it’s really been the D.A.’s Office pushing to get the case dismissed, versus the victim’s attorneys who are pushing to get the D.A.’s Office off the case. And obviously the defense has been on the prosecutor’s side in that battle. But there’s been a lot of hearings where they’ve had very little to say. Whereas on Friday, it was 90% Cohen, and going pretty hard at the judge.
And I think the ruling itself, I don’t think at this point was a surprise. Ever since the judge refused to dismiss the case, and at that point raise his concerns, it’s been pretty clear that this is where things were headed. I was surprised to see Cohen go that hard after a sitting judge.
That’s as much a push-back as I’ve ever seen, quite frankly, in any court proceeding to a judge.
Justine Harman: Sean and I parsed the points and counterpoints, as if we’d both watching the same sports game. The interactions and spectacles—the digs and the terse exchanges and the roastable outfits—aren’t just courtroom theatrics. These choices make a difference. They can influence or intimidate, distract or dissuade. They’re on the record.
Sean Emery: The legal theory is that a judge is supposed to set aside his feelings about it. But at the same time, judges make a million rulings leading up to trials. And from a human standpoint, I don’t know if we ever could really truly know if that enters into it when you have some of these rulings that may at a certain point be a close call. Obviously this case is a far way from trial if it ever gets there, but quite frankly, in a lot of cases, the really big fights are the pre- trial fights.
It’s what evidence is going to get in? It’s what are they going to be able to introduce? Some of these cases are won and lost based on what evidence can even get into trial before the trial even starts.
Justine Harman: I asked Sean something that has been bugging me: Do you think this case is getting the attention it deserves?
Sean Emery: I feel like it hasn’t, at this point, as far as the recent decision, which is odd to me. And look, I don’t say this as judging them, but I don’t know if even the L.A. Times has written about the D.A.’s office being taken off the case, unless they did an update over the weekend I didn’t see, which shocks me. And some of the other national outlets that have dipped in over the last few years when there’s been controversies surrounding the D.A.’s office haven’t really picked it up.
The thing I’m not sure of, if that’s just because this has not popped on their radar yet or if it’s been just how things have changed, meaning the pandemic, with the justice issues overall. Even locally, I think, back in the day until a couple years ago, you had the OC Weekly, which they would cover it a different way. They would be going hard. And I think some of the other national outlets would look to them sometimes to pick some of that stuff up. And maybe them not being around has done it. And the L.A. Times, I think, has moved out of the OC in general. So maybe that’s played into it.
I am surprised it has not gotten more traction. A D.A.’s Office being taken off a prosecution, particularly one that’s this big and it’s gotten this much attention nationally, that’s a big deal. It’s very rare.
Yeah. Well, this day and age, you’d think with obviously, the larger MeToo movement. And maybe it’s a sad testament to the fact that the victims to some extent, I know obviously Matt Murphy and obviously Mike Fell are doing their best to keep them centered, and the judge mentioned it of course, but it seems like on some level they have not been the focus at all, of this, recently. It’s been all what Rackauckas is accused of doing, what Spitzer is accused of doing, what various investigators are accused of doing or not doing.
And the simple fact that there are all these women who in any other situation would seem to be, so if you’re taking on a key role here, they’re just being on some level, pushed to the side, maybe not intentionally by anybody, but that seems to be the impact of this.
Justine Harman: Next time, on O.C. Swingers…
Audio Clip: We have photographs that will blow this court’s mind. I have photographs of injuries on this guy.
Shannen: He was not tortured. He pranced around or whatever, all the time. He just did whatever he wanted to do all the time.
Mike Fell: I think what happens is, as things go on and on, people get a little bit—I don’t want to say people get less interested—but things cool down.