Chapter 8: Cowboy Up

CHAPTER 8—COWBOY UP

Justine Harman: 

“It is little wonder that rape is one of the least reported crimes. Perhaps it is the only crime in which the victim becomes the accused.”—Freda Adler

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: Cowboy Up

Justine Harman: Any time I walk someone through the timeline and facts of this case, they always ask me the same questions:

And, this whole time Grant and Cerissa are just, what, out in the world? What are they doing? Are they working? Are they…partying?

Are they still together?

Well…

Shannen: When they first moved in, he came in, He’s real bouncy and jovial. So it’s like snowing and he’ll wear like, uh, you know, board shorts and Ugg boots.

Justine Harman: This is Shannen. She asked that I not use her last name. Shannen was living and working in a community of condos in Mammoth, a ski village located about six hours north of Newport, when she couldn’t help but notice the new renters in the corner unit. While Grant and Cerissa were waiting to see what would happen with the case in early 2020, they moonlit as erstwhile ski bums. The way Shannen describes it, the whole setup was kind of like Schitt’s Creek. They would pop into Shannen’s office during business hours to grab their Amazon packages…or to complain about the water pressure.

Shannen: It’s not nice. It’s not, it’s not Newport nice. Do you know what I mean? It’s Mammoth, it’s rustic, definitely rustic at that, that particular unit where it has not been, uh, it was probably updated. Like, it doesn’t have Formica countertops, but some of them do, you know, but it has, it has like, but it doesn’t have granite countertops either. I mean, it probably had tile counter. So like eighties, nineties, you know,

Justine Harman: At first Shannen couldn’t place the couple.

But then, when she did, she couldn’t shake how unbothered Grant seemed.

Shannen: He said that he was self-employed. He worked from home. It was like almost a caricature that he always had a red Solo cup in his hand hand. It’s snowing. You know what I mean? Like, people aren’t partying at the beach or [laughs]. If you would come in to check for a package or something, he’d have a red [Solo cup] to the point where I made a point of it, you know what I mean? I would make jokes about it. ‘Oh, look at it. Don’t drink out of a Solo cup with that guy.’ You know? [Laughs]

Justine Harman: Cerissa was sweet, quiet, She was often on the phone with her mom. But, still, she didn’t exactly blend in.

Shannen: She’s pretty darn cute. I feel like, you know, the, my male friends definitely noticed her, you know, and, but she wears a lot of makeup, a lot of hair, you know, like when you go snowboarding, nobody really does that past, past 16 or whatever, you know, but she was, she was pretty made up all the time. She’s real. Soft-spoken and nice. And she doesn’t come off as dingy or dumb at all, you know? But I wouldn’t say that intelligent either, but just nice. She seems real sad.

She told me her name. And I had like a moment of, ‘I know that name. How do I know his face?’ And I know her name. And then I looked it up and I was like, ‘Oh, crap. That’s exactly where.’ But I told everybody and like, I would send everybody, you know, on text chains or whatever, go to my girls. And, you know, and they’re like, ‘Oh no!’

But nobody cared.

I was surprised. I was shocked to see them together. To be honest with you. I was like, what the heck? She stayed with him. That’s amazing.

Justine Harman: Shannen has a 16-year-old daughter. And these two were out on $1 million bail each just soaking in the property’s communal hot tub. It didn’t sit right with her.

Shannen: We have a sauna and the jacuzzi, they utilize the jacuzzi a lot. And so my, my neighbor and I, we would make a point that we saw them in the jacuzzi with other, we have a lot of like, not transient people, but people that come from the weekend and leave, you know, and, and they’re just renting a place just to ski for the weekend. It’s real small. Our town’s, like, 8,000 people. And then it expanded to like 20 and 30,000 on the weekends. Right. And it’s all bars. So we would see them in, if we saw them in the jacuzzi, we would make a point of, one of us to walk by. And I would always be like, ‘Hi, Grant.’ Or, like, ‘We see you there.’

I wouldn’t even know the number to tell you of how many bars we have in our town. And I can drive to all ends of town. I could drive to all four corners of town in five minutes.

I just wasn’t comfortable with it. And then when nobody knew, and our town is so small, like when my daughter turned 16, the, all the police and all the firemen, all the, every public utility or whatever, they had a parade for her, like a birthday parade, you know?

I go, how is it possible that he can leave the County?

He can leave the County without you should have notified the incoming County or the incoming County should have to approve him or, or whatever, be aware he has to check in there, even if he is just out on bail. And they said, Well, It is an open case. Um, we did not know that he was there, but we, there was no reason really that we should, you know, that we would find out because it’s a probation issue or, you know, or not probation, but a bail issue. And so if the judge said they could go, they can go, you know, and, and he said, we’re, it’s, we’re glad to hear that we now know where he is, but, um, there’s, you know, you don’t really have anything to worry about as long as your daughter doesn’t party with them. I was like, ‘Well, okay.’

Justine Harman: Do you remember who you spoke with in the District Attorney’s office

Shannen: I do not remember, but I do remember when I first spoke with a woman and then it was actually, his title was something along the lines of criminal sexual investigator or whatever. And he was assigned to that case specifically.

Justine Harman: Was it Eric Wiseman?

Shannen: Yes, it was Eric Wiseman.

Justine Harman: And he said to you, “You should be fine. As long as your daughter ‘doesn’t party?'”

Shannen: “As long as you don’t party with them,” that’s what they told me.

Justine Harman: That’s crazy.

Shannen: I thought it was crazy too.

Justine Harman: I asked the DA’s office whether Eric Wiseman told a concerned citizen that her 16-year-old daughter would be fine around a couple charged with raping an drugging women as long as she didn’t “party” with them and was told by a public information officer via text, “This is an AG case now.” I responded, “So no comment on the validity of the purported statement by Erica Wiseman? And was again told, “We aren’t in a position to comment given it is being handled by another prosecutorial agency.”

But if Grant and Cerissa were having a hard time—on Good Morning America they said they had been living in exile, receiving death threats, that it had all been like a “bad nightmare”—they weren’t letting on to their neighbors in Mammoth.

Shannen: It’s kind of offensive. I just watched the GMA thing today. Right. I probably saw pieces of it. And they were like, Oh, they’re so tortured or whatever. Right. They were totally anonymous. And like, he was not tortured. He pranced around or whatever, all the time. He just did whatever he wanted to do all the time.

It was like a vacation is what it is, vacation life that they just played all the time. He would seem like the happy, like a little leprechaun. That’s what he seemed like. Do you know what I mean? Like, he’s always like, he has like a little jaunt in his step. He’s always on his way somewhere.

Justine Harman: He still had the same cell phone number listed on the search warrant affidavit. She sent me a picture of it written on a scrap of paper.

Shannen: You know, it’s weird. You would think he would have had, I would think they would have had to change at five times—

Justine Harman: That’s what I would think. He said he was getting hate mail and stuff.

Shannen: No. Nobody even recognizes them. And you know what? He gets a lot of smiles from girls though. He’s pretty good looking, you know what I mean?

Justine Harman: Last episode, you heard from Mike Fell, the attorney for Jane Doe #4. He and I spoke immediately following that triumphant day in August 2020 when it was announced that the case against Grant and Cerissa would now be handled by the Attorney General’s office—

Mike Fell: 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.

Justine Harman: But faith in the criminal system can be a fickle thing. On January 6, 2021, nearly five months after the AG began its own investigation, Mike Fell and I reconnected on the eve of yet another pre-trial hearing. Let’s just say things weren’t exactly full steam ahead…

Mike Fell’s Wife: Hello?

Justine Harman: Hi, I’m looking for Mike Fell?

Mike Fell’s Wife: Can you hold on for one second?

Justine Harman: Of course…?

Mike Fell: Hey, Justine! Sorry about that! I was doing an important job. I was separating the grease from the hamburger meat.

Justine Harman: That’s a hard focused task, I understand.

I was hoping I could talk to you for a few minutes on the record. Do you have a moment?

Mike Fell: Yeah, yeah let me go into the other room. [Pause] OK go for it.

Justine Harman: What do you think is going to happen tomorrow?

Mike Fell: I did talk to the deputy Attorney General who is handling this case, Ms. Martinez. It sounds like they’ve got quite a bit of work to do. My understanding is that she’s asking for a couple more months.

Justine Harman: Ugh

Mike Fell: And it also sounds like the defense is not objecting to that.

Justine Harman: How do you feel about that?

Mike Fell: I want the right thing to happen. I want to make sure they’re reviewing everything. I think we’re going to set up a meeting, so that my client can talk to the Attorney General, so that her voice is heard, which is going to be extremely important. The frustrating part for me is that, as a Marsy’s Law attorney. I don’t get the reports…I don’t get all the evidence they have. So, you know when the DA says, ‘Here is the review of the case’ or ‘We can’t make the case.’ It’s tough, because being a former DA, I wanna say, Hey. Give me the evidence. I’ll let you know if we can make a case or not. It puts me in a precarious situation. And I don’t like being in that situation. In my situation, I’ve got a victim who I implicitly believe. In my mind, the people who perpetrated the violence against her should be thoroughly prosecuted.

Justine Harman: The AG’s office has had the same amount of time to review the evidence as the DA had. I imagine that the continuance will frustrate someone—someone other than me?

Mike Fell: It’s always frustrating. From my client’s point of view this is years in the making. There’s the old saying, you know, ‘The wheels of justice turn slowly.’ And we’re definitely seeing that in this case. So, you know, I definitely don’t want the AG to rush. I want them to fully review the evidence they have, so that Mr. Robicheaux and Ms. Riley will be properly prosecuted.

Justine Harman: You said you had just been on the phone with Matt Murphy. Are you aligned in your expectations of tomorrow?

Mike Fell: The bottom line is that there won’t be an outcome tomorrow. There’s so much information, there’s so much to look at. I would never want to rush a prosecutor. I wouldn’t want anyone to rush me when I’m trying to do the right thing.

Justine Harman: Not to get overly political, but you may remember what was going on in this country on January 6, 2021, the day I connected with Mike Fell over the phone.

It was the day that insurrectionists stormed the nation’s Capitol building.

To me, at least, it felt like one of the days where you have to tell the truth about the country we live in. About who gets the benefit of due process—and who doesn’t.

Mike Fell: I’m on the phone with the AG today and she’s like, “Oh my god it’s crazy what’s going on today.” And I’m like, With the elections in Georgia for Senate? And she goes, No. With what’s happening in DC. She goes, Turn on the TV. My assistant and I look it up on the computer. So, yeah, it is crazy times. It is crazy times. As far as bringing it back to the justice system and due process, it’s tough. You want everybody to have due process. On the one hand, the defendants are getting “due process.” Is my client getting due process? My client is waiting for the next step. And we’re so far from the next step. So, it’s difficult.

Justine Harman: No one is talking about this story.

Mike Fell: You mean with our case?

Justine Harman: Yeah.

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. Things may spark up or they may not. Or people move on to the next story. Obviously, in my client’s life, this is one of the biggest things that she’s been involved with. And she wants to see justice. And she’s being very, very patient. As are the rest of the women. And, hopefully, [they’ll be] getting that in this case.

Justine Harman: OK, well, it’s nice to hear. I’m kind of thinking “This thing is never gonna go their way,” is kind of where I’m out at this point…[a bit more chatter]… Sounds like tomorrow is kind of a non-event?

Mike Fell: Matter of fact, the last that I was told is that it’s all going to be on Webex, the court’s version of Zoom. The AG will make a case for a continuance, we’ll make our appearances, and then it will be over. I can’t imagine it will be more than a couple minutes.

Justine Harman: OK, so—spoiler alert—what Mike Fell thought was going to happen on January 7, 2021. Yeah, that ‘couple of minutes’ over Webex’ That’s not exaaaaactly what happened…

Justine Harman: Deputy AG Yvette Martinez kicks things off by saying that the AG’s office is still waiting on some digital discovery—some videos and some photos—and would like to request a 60-day continuance. She says: “It’s been exceedingly difficult to ascertain whether or not we, in fact, have all of the discovery we are entitled to.”

The defense—the same people who were rushing the case to trial as soon as it landed in the AG’s hands—has no objection.

The judge then asks for comment from Matt Murphy, the victim’s attorney. You’ll remember that he’s the Marsy’s Law counsel for Jane Does 1, 6, 7, and 8. In California, victims rights attorneys can speak up on behalf of the victims at all relevant court proceedings.

Yeah, Matt says. I have an objection.

He starts, “What we just listened to is pretty extraordinary,”

Matt Murphy: What we just listened to is pretty extraordinary, if you think about it. The Attorney General has had this case for six months. And we just heard the Attorney General say that they do not have all of the discovery. So, this is symptomatic of the ongoing issue we’ve had with the District Attorneys office.

Justine Harman: He says he doesn’t want to re-litigate everything that has happened so far. But he needs to make the court aware of the few things. That “de novo” review they did in the DA’s office? The one where Spitzer was hands-off so his team could come to their own conclusion? That was bullshit.

Matt Murphy: There has been an ongoing pattern of interference by Todd Spitzer. We’re thinking, ‘Once they’re off the case, we’re good. The integrity is going to be restored.’ Ms. Martinez seems like a good person. The victims are expecting this thing to move forward. That has not happened.

Todd Spitzer has continued to interfere with this case. He is interfering with the Attorney General. Six months [later] and they don’t have all of the discovery. We’re trying to work with everybody, but no one’s talking to my clients from the AG’s office. I know that Todd Spitzer is personally reaching out to prosecutors—and that stinks.

I’ve come into some documents. I have this in PowerPoint. Can I set this up?

Justine Harman: Matt Murphy, the only lawyer physically present in court that day, begins to read excerpts from some documents he has “come into.” Internal memos from the DA’s office that, he says, prove Todd Spitzer is still meddling with the case—

Matt Murphy: This person says that, Spitzer was personally calling this person on the de novo review team and telling her what to put into the PowerPoint. Todd was on a plane, and I was listening to this and that. And I was like, ‘Wow. He’s really into this.’

Justine Harman: “Todd was on a plane,” someone from an internal review team is quoted as saying. “And I was listening to this and that. And I was like, ‘Wow. He’s really into this.'”

Murphy goes through other documents:

There’s one that clears former DA investigator Jennifer Kearns’ name—

One that shows Todd Spitzer is stonewalling his own team—

And another alleging that Spitzer’s Motion to Dismiss, filed under “insufficient evidence,” contains numerous “unsupported allegations, misstatements, untruths, and factually wrong conclusions.”

Matt Murphy: I looked it up, and an untruth is a lie. It’s one thing to leave something out. It’s something else to lie to a court.

Justine Harman: The few people in the courtroom are clearly stunned by the turn of events. Around the 18-minute mark, you can actually hear someone whispering in hushed tones, “Tell him to go on the YouTube.”

Unknown person: Tell him to go on the YouTube.

Justine Harman: The hearing—which Mike Fell assured me would only be a few minutes, top—goes on for 42 minutes.

Murphy insists that Todd Spitzer is impeding the AG’s ability to learn the case. “It’s like we’re back at square one,” he says. “It’s like we’re starting all over again. This is fundamentally unfair to the victims.”

Matt Murphy: It’s like we’re back at square one. It’s like we’re starting all over again. This is fundamentally unfair to the victims of this case.

Justine Harman: If the AG really wants to understand this thing, he says, he’d be happy to share evidence with them. There are incriminating text messages and photographs—

Matt Murphy: We have photographs that will blow this court’s mind. I have photographs of injuries on this guy.

Justine Harman: “Photographs of injuries on this guy.” As in, he’s seen a photograph of an injury sustained by Grant the night of an alleged attack. And the AG hasn’t.

Matt Murphy: Let’s all get on the same page. If there is going to be another motion to dismiss, OK, we are not going along with it. And you can bring that on. There is no way given the evidence in this case that that’s going to happen. So, the AG needs to cowboy up or they need to appoint a special prosecutor.

Justine Harman: Yes. He literally said that the Attorney General of California needs to “cowboy up.”

Judge Pham seems flustered.

Judge Pham: Thank you, Mr. Murphy, for the presentation… This is not, uh, in relation to any motion. Certainly this court is not in the position to tell the AG’s office how to do their job. Nor is it it this court’s job to suggest that there has been any ethical violation on the part of any attorney or an office that is not a party to this action at this time. So with that, I believe we have concluded the presentation on behalf of the victims in this case. Mr. Fell, is that correct? Or did you have something else to add? Mr. Fell, can you hear me?

Mike Fell: No, no. Yes, I can now. I’m glad that Your Honor corrected the issue of filing. I think Ms. Martinez misspoke when she used that word. Other than that I submit, your honor.

Justine Harman: Yvette Martinez from the AG’s office chimes in—

Yvette Martinez: I want to assure the court counsel and the victims that we are conducting a very thorough and independent review of the case.

Justine Harman: “I want to assure the court counsel and the victims that we are conducting a very thorough and independent review of the case,” she says. “It is true that Investigator Kearns informed us that she cannot speak to us. However—”

Yvette Martinez: However, We do have most of the evidence. Perhaps that I need to explain to the court the discovery issue. As it may not be as nefarious as Mr. Murphy said. We received thousands of videos and photographs. They were given to us in an unorganized fashion.

What we are hoping is that it’s a labeling issue. It’s a complicated process. Over the holidays, the forensic analyst wasn’t able to work with their special investigator to compare the actual content to her satisfaction. I am doing our due diligence to make sure we have all of the evidence. It appears that there are some gaps. But they also have things that aren’t the list.

Every single message. All the videos.

We are proceeding methodically and independent of the District Attorney’s office.

Justine Harman: Matt Murphy just absolutely goes for broke at this point. “We’re all here,” he says. “Has Todd Spitzer ever personally reached out to you?”

Matt Murphy: We’re all here. Has Todd Spitzer ever personally reached out to you? Has Todd Spitzer, after he got kicked off this case for conflict, has he personally tried to contact you?

Yvette Martinez: Um—

Judge Pham: Mr. Murphy—

Justine Harman: You don’t need to answer that, the judge says.

Philip Cohen: Your, honor—this is. This is Philip Cohen. Yeah, this is Philip Cohen. Philip Cohen on behalf of the defendants. Can I respond as my client has somewhat of an interest in this case.

Judge Pham: Respond in what way? I allowed Mr. Murphy to make a statement on behalf of the victims. I don’t require a response to a victim statement. It’s almost like a victim impact statement.

Philip Cohen: Your honor. I’m sorry. Uh-uh-uh. I’ll be very brief.

Judge Pham: OK.

Philip Cohen: My only request is, Mr. Murphy made mention of some documents regarding Jennifer Kearns that were being requested by Mr. Murphy. I would object to any under seal filing by Mr. Murphy.

Philip Cohen: To the extent that Marsy’s attorneys have documents regarding Investigator Kearns that the defense does not have, I find that problematic as well. So, I would ask the court to file whatever Marsy’s wants to file, but I do not believe there is any basis or cause shown to file it under seal. If the court is inclined to file it under seal, I’d ask that a motion be filed and a hearing be set as to whether the documents should be sealed

Judge Pham: Well, that’s fair enough, Mr. Murphy.

Matt Murphy: Yeah, yeah. No problem.

Judge Pham: OK, so are you intending to file these documents today?

Matt Murphy: Yes, yes.

Judge Pham: If there’s anything you wish to file under seal, you’ll file a motion?

Matt Murphy: Yes, your honor

Judge Pham: All right. Mr. Cohen, are you satisfied?

Philip Cohen: Thank you, Your Honor.

Judge Pham: All right.

 All right, then, is there anything else from the prosecutor?

Prosecutor: No, Your Honor

Judge Pham: From the defense?

Defense: No

Judge Pham: On behalf of Ms. Riley

Cerissa Riley’s Attorney: No

Judge Pham: Mr. Murphy?

Matt Murphy: No

Judge Pham: Mr. Fell?

Mike Fell: No thank you.

Judge Pham: Thank you all very much for your appearances, we’ll see you next time. Thank you!

Justine Harman: Next time, on O.C. Swingers…Oh, shit, no wait—

Judge Pham: Thank you all very much for your appearances, we’ll see you next time. Thank you! Oh hold on! Counsel, do not disconnect. I’m gonna order that both of the defendants be allowed to appear 977 through their attorney until further notice.

Justine Harman: 977, as in, Grant and Cerissa will no longer have to appear in court for the foreseeable future.

Judge Pham: Is that agreeable for all parties?

Attorney General: Yes, Your Honor.

Judge Pham: And Mr. Cohen?

Matt Murphy: I think we lost Mr. Cohen.

Philip Cohen: Yes, Your Honor.

Judge Pham: And Mr. Borthwick…

Borthwick: Yes, Your Honor.

Judge Pham: All right—thank you!

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