Chapter 2: Sunday Funday

CHAPTER 2—SUNDAY FUNDAY

Justine Harman: A listener’s note: this episode includes graphic sexual details and may be triggering for some. Dramatic reenactments are based on public police reports, official transcripts, and individuals with direct knowledge of the events as they occurred. Please take care while listening.

From Justine Harman and audiochuck, this is O.C. Swingers, chapter two: “Sunday Funday”

Justine Harman: On April 12, 2016—six months before Grant and Cerissa’s elderly neighbor heard screams in the alleyway—a 30-year-old woman reported an assault to the Newport Beach Police Department. She told officers that she met Dr. Grant Robicheaux a week before at China Palace, a popular restaurant in Newport. They exchanged numbers, and a few days later she received a text from Grant inviting her to join him on a “Sunday Funday” cruise around the Harbor.

Justine Harman: The party began at the docks outside The Cannery, an upscale seafood restaurant, around 4:00 p.m. The woman joined Grant, Cerissa, and some of their friends on a joyride to Woody’s, a laid-back waterside bar located about a half mile down the harbor. It is unclear whether she knew Grant would be bringing along his girlfriend, but a photo from that day shows the petite brunette smiling with Cerissa and three other young women on the back of the boat. The woman is wearing a black tank top and blue jeans with exaggerated rips down the front.

Directly next to her, Cerissa playfully pulls her lips into a kissy face.

Sunday brunch at Woody’s is known for two things: getting rowdy and bottomless champagne, which waiters serve directly to hard-partying boats parked in the wharf. One of the first things that pops up on YouTube when you search for “Woody’s Wharf” is a video titled “Fight at Woody’s Wharf Newport Beach.” The clip is a 30-second melee of about a dozen people brawling aboard a white motor boat named “Off the Hook II.” It’s chaos. A bystander incessantly screams “Courtney, Courtney” while a bystander asks—yep—”Is that guy punching that chick?”

 

Fight at Woody’s vide0: “…Is that guy punching that chick? What the hell?”

Justine Harman: It’s been viewed more than 100 thousand times.

Fight at Woody’s vide0: “Hey! Money doesn’t buy class, assholes.”

Justine Harman: I just had to see what Woody’s was like for myself. So, on an excruciatingly hot day back in early October, I enlisted a friend to drive with me the 50 miles from Los Angeles to Newport Beach, California.

Justine Harman: We get to Woody’s around 4 p.m. on a Friday, and I’m immediately struck by a sign next to the entrance that reads, “Absolutely no alcohol beyond this point…so start chugging.” After ordering happy hour drinks outside—it’s October, so still Covid, but there are plenty of people drinking inside—we begin chatting with our waitress, whom I’ll call Beth. It takes me two tequila-sodas to ask Beth whether the name “Grant Robicheaux” rings a bell. It doesn’t at first, but then I show her a picture and her eyes light up with recognition. She tells me that when this case first exploded on the news, no one at Woody’s would talk about it. Maybe because a former doorman here was accused of nearly identical crimes back in 2015, of raping and drugging six women, and ended up pleading guilty to a single sex felony charge.

Video audio: I’ve seen it before. We had a door guy, who worked security, years and years ago.

He got busted for rape. There were so many charges—

Justine Harman: Beth says the doorman’s ex still defends him any chance she can get. A few days later, I call Beth for more context.

Justine Harman interview: How would you describe the Newport party scene?

Beth: Oh my god. It’s just crazy. It’s out of control by the end of the night.

I used to work Sundays, I don’t work them anymore. I just work Fridays and Saturdays. Sundays, at least at Woody’s, it’s crazy. Because it’s champagne brunch.

It’s crazy. You have a lot of boats that come in. It’s just insanity actually. [12:37—12:59] So people serve the boats directly—they don’t even have to come into the restaurant? Oh yeah, we have cocktail servers that actually go out and um. But we have security out there. Do the boats interact with each other? Oh heck yeah.”

We make sure to check everyone’s ID’s. It’s a big thing in Newport about—like ABC will come and make sure everyone is age, and stuff like that.

Justine Harman: Beth tells me she’s glad she doesn’t work Sundays anymore—they’re just too wild. Dudes would roll with boats full of women so young that reporters began sniffing around for a story. They started staffing the docks with security just to keep everyone in check.

The Sunday Funday back in 2016 was no exception: The drinks at Woody’s were absolutely flowing.

The woman later told Newport Beach Police Officer Paul Sarris that she had about four alcoholic beverages—beer and Champagne—and began to feel extremely intoxicated.

The following is a dramatic re-enactment of an official police interview that took place on April 12, 2016.

Male Officer: It says here [officer leafs through documents] that you’re four-foot-nine and 100 pounds? Is that correct?

Jane Doe: Yes. Around there.

Male Officer: So, four drinks is a lot for you, isn’t it?

Jane Doe: I know how I usually feel after four drinks. This was different. It felt like I had ten drinks. I could barely walk.

Justine Harman: At one point, she said, she watched Cerissa pour clear liquid from a contact lens case into a bottle cap and slurp the contents.

Jane Doe: I thought that was weird. Like, who drinks contact solution?

Justine Harman: The boat returned to the Cannery, and the woman got off and boarded a golf cart with Grant and Cerissa to continue the party at Grant’s apartment. (Grant and his sister don’t move into the cushy duplex on 44th until June of that year.) According to someone who was there that day, and remembers the woman leaving with Grant and Cerissa, it wasn’t unusual for the couple to bring new friends home. She told me, “Usually if Grant and Cerissa left with a girl, there was chemistry or something going on. They played the flirting game and made it very obvious what their M.O. was. They were very open with it and usually led with it, actually.”

You’ll hear this refrain again and again—from friends and lawyers—that everyone knew exactly what Grant and Cerissa were into. And that women routinely sought out the booze, the drugs, the group sex. They were “looking for the party.”

Male Officer: OK, so what happens when you get back to the apartment?

Jane Doe [with hesitation in her voice]: I remember…lying down on the stairs near the fireplace to keep warm. I was so, so tired. And then they, like, picked me up and carry me to an upstairs bedroom.

Male Officer: Grant and Cerissa pick you up and put you on the bed?

Jane Doe: Yes. And I’m lying there—

Male Officer:On your back?

Jane Doe: On my stomach.

Male Officer: Okay. And then what happens?

Jane Doe: So then Cerissa puts her palm out flat in front of me—like, this. There’s a line of white powder and a small orange pill. And she—

Male Officer: Cerissa?

Jane Doe: —Cerissa snorts the powder, takes the pill, and then puts her hand out again, like, ‘Now you go.’

Male Officer: And the powder is cocaine?

Jane Doe: See I don’t know, because I immediately felt so tired. Usually coke wakes me up, right? But I could barely keep my eyes open. I felt awful. It was so intense, but then I was also kind of relaxed. My body was relaxed. It’s so hard to describe, because the memories don’t exactly fit. It’s not all there, you know?

All of a sudden, I notice that Cerissa is completely naked. She starts tugging off my shirt while, at the same time, Grant is pulling down my jeans. I try to tell them to stop. I say something stupid like, “I’m on my period” and Cerissa snaps at me like, “Don’t lie. I know you’re not on your period.” He flips me over—

Male Officer: Robicheaux flips you over?

Jane Doe: Yeah, so now I’m now on my back. And he—Grant—he pulls me by my ankles toward him.

Male Officer: He’s also naked?

Jane Doe: Yes.

Justine Harman: The woman said Grant began to have unprotected sex with her while Cerissa filmed the encounter on an iPhone with a light blue case. At one point Grant and Cerissa referenced another woman who got upset when they filmed her, so Cerissa put the phone away. Grant went back and forth, having sex with her and then Cerissa and then her again. Then Cerissa performed oral sex on her while Grant had intercourse with Cerissa. The woman told Officer Sarris that she felt paralyzed, like she couldn’t move or make them stop. At one point, Grant attempted to have anal sex. But she pushed him away and he didn’t try again. After the sex is over—the woman said she thought Grant ejaculated, but she doesn’t know where—he brought a key with gray powdery substance to her nose.

Jane Doe: At that point I’m like, Whatever. I just do it. It feels easier to just do it than to fight back. And then I can’t feel anything at all.

Justine Harman: At around midnight, the woman said, she was awoken by her phone ringing. Though this part changed in later interviews, she originally said she immediately called an Uber to take her home to the apartment she shared with her boyfriend Ryan. They had been together for a year and a half.

The next day, Grant texted her. “Hey there! That was fun last night. We should do it again soon.”

The woman didn’t text back. And the very next day she reported the rape and followed a police car to Anaheim Memorial to undergo a Sexual Assault Response Team, or SART, exam. A forensic nurse swabbed her cervix, her vagina, her vulva, cheek, anus, neck, breasts, and fingernails for DNA. She provided a urine sample and turned over her unwashed black tank top, H&M jeans, and Forever 21 bra—the outfit she wore that day on the boat. The nurse then asked a routine question. Did you have sexual intercourse with anyone other than the assailants in the five days leading up to the incident? “No,” she answered.

This would turn out to be a lie—and a crucial one.

Justine Harman: According to a report filed by Detective Gamble, the woman was not cooperative in the weeks following the forensic exam. On April 19, nine days after the incident, she told Gamble that she felt “overwhelmed” and did not wish to move forward with the investigation. She did, however, agree to identify the suspects from a six-pack photograph lineup, even though she’d already shown an officer their Facebook pages. She failed to show up for the lineup and then said she’d be out of town for a week. Gamble tried to connect with the woman several more times. She said she left three voicemails —on May 3, May 6, and May 18 —and sent a letter. On June 15, the woman’s toxicology report came back. At the time of the test, there were amphetamines, MDMA—or Molly—and the presence of cocaine in her system. Gamble called the woman, and once again she agreed to do the lineup. But she doesn’t show up. On June 17, 2016, Detective Gamble left one last message saying that she’d be unable to continue with the investigation without the woman’s assistance. She then closed the case under “leads exhausted.”

But in July, semen was detected in the vaginal sample, which was forwarded to the California Department of Justice DNA laboratory to check for matches with profiles in their CODIS database. CODIS stands for Combined DNA Index System. Additional foreign DNA was also discovered on the woman’s neck, right breast, left fingernails, and the vaginal sample. But there wasn’t enough to try and find a proper match in the database.

On March 15, 2017, nearly a year after that day at Woody’s, the Orange County Database returned a positive match, a “CODIS hit.” The DNA sample found in her vagina belonged to… Ryan, the woman’s boyfriend. The following day, Newport Beach Police Detective Kristen Fox reached the woman by phone with the results. The woman admitted she had sex with Ryan the day of the incident. And that they had an argument just before she left to meet Grant on the boat. She doesn’t say why she omitted the information during the forensic exam—or, at least, it’s not included in the report—but it’s clear things had been rocky between the couple.

Less than two months before the Woody’s incident, the woman called 9-1-1 while riding as a passenger in Ryan’s car. She was worried, she said, that he was too drunk to drive.

At 9:05 p.m. on February 21, 2016, an officer located Ryan aggressively pulling his white Toyota Tacoma into a parking lot at 1835 Newport Boulevard in Costa Mesa, just a few miles inland from Newport. He was arrested for driving under the influence. A few months later, after his license was suspended, he plead guilty in exchange for probation, first offender alcohol and victim impact counseling, and one other thing. He agreed to have his DNA, fingerprints, and a photograph on file, for perpetuity, in the Orange County District Attorney’s DNA Database.

This tangent about Ryan and his DUI may seem like a red herring, but it’s not. To refresh your memory, here is the timeline of events:

On February 21, Ryan gets arrested for driving under the influence after his girlfriend calls the cops.

On April 3, this same woman meets Grant Robicheaux at China Palace and exchanges numbers with him.

On April 10, this woman parties with Grant and Cerissa at Woody’s and goes home with them, according to both police reports and witnesses.

On April 12, the woman reports that she was raped and drugged by the couple and submits a rape kit. She later stops cooperating with police and the case is closed.

On July 22, the OC Crime Lab confirms there is sperm in the vaginal sample and forwards the finding to their DBA database to see if it matches a known offender, though she’s already identified the perpetrators.

On October 2, Grant and Cerissa’s neighbors call the cops after hearing screams coming from the alley. This case, too, is subsequently closed and filed under suspicious circumstances.

On November 23, Ryan, the first woman’s boyfriend, pleads guilty to driving under the influence. And, as part of a deal plea, agrees to contribute his DNA to Orange County District Attorney DNA database. This process can take a while, as they need to test the sample, generate a profile, and then upload it to the database.

On March 15, 2017—more than a year after the DUI—the database confirms that the DNA found in the woman’s vaginal sample belongs to Ryan. The District Attorney’s office is alerted of this CODIS hit, as is customary. Eventually an investigator named Jennifer Kearns is assigned to review all of the corresponding cases.

My point is this: If the woman never called 9-1-1 on her boyfriend that night, the District Attorneys’ office may never learned the names Grant Robicheaux and Cerissa Riley.

Without the DUI incident, the DA’s office never gets a CODIS hit. Without the CODIS hit, the two police incidents concerning Grant and Cerissa stay closed.

Coincidence or conspiracy? It depends on whom you ask.

Andrea Roth: I am Andrea Roth. I’m a law professor at UC Berkeley where I teach Criminal Law and Criminal Procedure and Evidence. My specialty is Forensic Evidence like DNA.

Justine Harman: In 2019, Andrea Roth authored a paper about the secretive nature of the Orange County DNA database titled, “‘Spit and Acquit’ Prosecutors as Surveillance Entrepreneurs.” She knows more than most about how DNA sequencing technology works. And, in Orange County, things kiiiiind of work the way Seth Rogen’s cop character described it in Superbad.

Superbad Clip: This is job really isn’t how shows like CSI make it out to be. When I first joined the force, I assumed there was semen on everything. And that there was some huge semen database with every bad guy’s semen in it. There isn’t! That doesn’t exist!

Andrea Roth: Orange County is so far the only prosecutor’s office in the entire country that has its own DNA database. It has the biggest DNA database that is not linked up to CODIS. It’s sort of its own thing, it’s their pet project if you want to call it that. I think at last count it had over 170,000 people in it. I haven’t even checked in a year or so, so it could be higher but it’s a significant number of people who are in this database.

What’s unique about it is number one, that it was created by a prosecutor’s office. Number two, it’s not authorized by a state statute or a federal statute. It’s not one of these DNA databases, state or federal DNA databases that are filled with people who are required to give a DNA sample because of some crime that they’ve been convicted or arrested for.

Instead, these folks are in this database because they have agreed to be in the database in exchange for having their misdemeanor offense dismissed or a more lenient plea offer. It’s ostensibly consensual and that’s how it can get around constitutional scrutiny.

Justine Harman: Andrea thinks Ryan’s CODIS hit is weird…for a variety of reasons.

Andrea Roth: Normally the reason that you would run a DNA profile that you get from a crime scene or a rape kit through CODIS, is that you don’t have a suspect. It’s like a stranger rape and the person then leaves and the victim doesn’t have any clue who the rapist is. Or there’s a homicide victim or a burglary scene or something, and you get DNA and you have no suspect. You run it through CODIS and lo and behold you get a match or whatever. I’ve just never heard of a case where you have a victim saying, “These are the two people who drugged and raped me.” Then somehow running the DNA sample through CODIS just to see if there’s anybody else.

Justine Harman: When I ask the Newport Beach Police Department why they ran the rape kit through CODIS in the first place, they say they were unable to respond, as it is not public information. But Andrea Roth says a giant DNA database full of non-violent offenders is rife with ethical issues.

Andrea Roth: I’ve actually heard hallway conversations between prosecutors and people who are not represented by lawyers. The prosecutors tell them, “Look, you’d have your DNA in this database so if you commit a crime later on like a murder or whatever, then we would be able to see that it was you,” which is true so far as it goes. That’s basically the gist of what they tell them in the hallway.

I think folks think, “Well, I’m not planning to commit a murder so, what’s the big deal?” I don’t even think that the prosecutors are trying to be misleading. I think it’s that, having your DNA in some under-regulated government database is something that maybe none of us really know the full implications’ of because technology is changing so rapidly, but there could be coincidental hits.

There could be coincidental hits. As in, an emergency alarm can be rung—alerting the district attorney’s office to a pressing criminal matter—where the alarm might not be wholly warranted.

Justine Harman: Last episode I mentioned that in addition to the amended charges filed on October 17. 2018, Danielle Bajec—Jane Doe #5 of seven in the criminal case—filed a civil suit. She not only sued Grant and Cerissa, but also Grant’s sister Jennifer and his brother-in-law Bill, who shared the duplex and a homeowner’s insurance policy with Grant. In a public filing submitted by Bajec, she said she suffered from severe mental and emotional distress consisting of panic attacks and intrusive thought after being roofied and assaulted by Grant and Cerissa around Halloween 2016. Hers was the third allegation of rape, or attempted rape, by the couple that year. While Bajec’s lawyer Dan Gilleon wouldn’t put a price tag on the case for me, it’s been said that she was originally seeking $20 million in damages.

The matter, which was later settled outside of the court, presented a unique opportunity for the defense. Grant’s criminal attorney, Philip Cohen, was able to subpoena and interview several individuals involved in both cases to gather information that might be beneficial to his client. Criminal attorneys don’t typically depose witnesses in correlating civil matters, but that’s what happened here. Bajec’s attorney Dan Gilleon told City News Service that he was comfortable with Cohen leading the depositions because of his lack of experience. He said, “Our case is about one thing and his case is about another so he doesn’t know how to ask questions in a way that was useful.”

Philip Cohen could be described as a caricature of a bullish defense attorney. Think the dad from Clueless but far more physically imposing. He is bald and broad shouldered with a pronounced forehead and sunken, owlish eyes. He likes to dress up for court in tweed vests, pocket squares, and thickass ties, which he wears only loosely knotted. He’s a yeller. Before defending Robicheaux and Riley, his most famous case was defending a co-founder of the frozen yogurt chain Pinkberry who was found guilty of beating a homeless man with a tire iron. Philip Cohen doesn’t just show up to court with a briefcase—he comes in guns blazing, looking for a fight.

On August 7, 2019, Cohen deposed Detective Kristen Fox, a now-retired veteran of the Newport Beach Police Department who was assigned to revisit the assault at Woody’s after the CODIS hit in 2017.

I was able to obtain a recording of their interview—these are not actors. Around the one hour mark, Cohen begins to ask about Jennifer Kearns, the DA’s former lead investigator on the case.

Philip Cohen: Do you remember how it came about, that after NBPD closed these two investigations—and will get into more specifics about those—after Newport Beach PD closed them, how it came about that Investigator Kearns then started asking you, or, requesting from you information about those two cases.

Kristen Fox: As I recall it, she reached out to me in reference to the CODIS hit?

Philip Cohen: Were you involved in the CODIS hit?

Kristen Fox: Yes.

Philip Cohen: So, sometime after the CODIS hit, investigator Kearns reaches out to you and ultimately requests reports from you on cases you had originally closed?

Kristen Fox: Yes.

Philip Cohen: Was it unusual that an outside law enforcement investigator would request from you reports on cases that your office had thoroughly investigated and closed?

Kristen Fox: Your word, unusual. I don’t know what her experience—and background

Philip Cohen: I’m asking about your experience.

Kristen Fox: In my experience, yes.

Philip Cohen:: So you get assigned to follow up on this CODIS hit. We all seem to agree the CODIS hit had nothing to do with Robicheaux or Riley, correct?

Kristen Fox: Yes.

Philip Cohen: And so to the extent that Robicheaux and Riley were suspects of a crime back in April of 2016, this CODIS hit in March of 2017 does nothing to in any way strengthen a case against Robicheaux or Riley, correct?

Kristen Fox: True

Philip Cohen: In fact, fair to say that the CODIS hit actually calls into question even more so the credibility of Jane Doe 1?

Pause

Kristen Fox: Yes.

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