SANTA ANA (CNS) - An attorney representing victims in the rape and sexual assault case against a Newport Beach hand surgeon and his girlfriend alleged in court papers obtained Tuesday that Orange County District Attorney Todd Spitzer, despite his office being disqualified from the case, continues to interfere in it.
The case against Dr. Grant Robicheaux, 40, and Cerissa Riley, 34, was reassigned to the Attorney General's Office last year after Orange County Superior Court Judge Gregory Jones refused Spitzer's request to dismiss the case and cited the politics interjected into the case in a tense election between Spitzer and his predecessor Tony Rackauckas.
Attorney General's Office prosecutors on Friday told Orange County Superior Court Judge Frank Ospino, the new jurist in the case, that they intended to file a new request to winnow the case down from five alleged victims to two victims.
Since the state prosecutors took over the case, “none of the victims have recanted, no alibi witnesses have appeared, and all six women represented by Marsy's Law counsel are still desirous of prosecution,'' Matt Murphy said in a June 4 filing that was unsealed by Ospino on Monday.
“From the victims' perspective, responsibility for the contentious nature of this litigation lies squarely with a district attorney who continues to place his own political self interests above the rules of ethics and the rights of victims,'' wrote Murphy, a retired Orange County Senior Deputy District Attorney who represents five women who have accused the defendants of attacking them in separate, unrelated incidents.
Kimberly Edds, a spokeswoman for the District Attorney's Office, brushed off Murphy's criticism.
“Mr. Murphy continues to make unfounded allegations in this case,'' Edds said. “Instead of his spurious, self-serving declarations, we look forward to hearings under oath in a court of law.''
Murphy faulted the Attorney General's Office for “a series of errors (well-intentioned as they may have been),'' in the case.
Murphy, who prosecuted some of Orange County's best-known cases such as the serial killer Rodney Alcala, said the Attorney General's Office, which has done a good job in the case involving appeals, has failed in the prosecution since taking it over.
Murphy argued that the Attorney General's Office prosecutors “have placed themselves in a position where the appointment of a special prosecutor has now become necessary.''
Murphy asked Orange County Superior Court Judge Steven Bromberg, the prior judge in the case, to refuse to let prosecutors dismiss charges in the case, leaving the Attorney General's Office unable to proceed and requiring the appointment of a special prosecutor. That is what happened last year when Jones refused Spitzer's move to dump the case, leaving Spitzer's prosecutors to declare they could not ethically go forward.
But even though Spitzer's office is off the case, Murphy said, “In short, Mr. Spitzer, it seems, simply cannot let this case go.''
Spitzer, Murphy argued, “has continued to burst through any `ethical screen' that may have been erected, and the Attorney General, it seems, has provided Mr. Spitzer a welcome, if reluctant, audience.''
Spitzer forbade his office's investigator, Jennifer Kearns, from speaking with the Attorney General's Office without her supervisor present. Kearns has since filed a whistleblower lawsuit against the county.
Then Spitzer placed Kearns on a “Brady List,'' which is for law enforcement accused of allegations of mishandling the transfer of evidence to defense attorneys as required by law, Murphy said. That was done even though Jones “cleared her of any wrongdoing'' in the case, Murphy said.
The attorney said the move was made “in the obvious hope this would further influence the attorney general's review'' of the case.
Murphy also accused Spitzer of “repeatedly contacting the Attorney General's Office'' about the case despite his office's disqualification from it.
Spitzer “then withheld discovery from the Attorney General's Office for several months, and what had been provided was sent over in an `unorganized fashion,' '' Murphy said.
When one of the victims filed a complaint against Spitzer with the state Bar organization, Spitzer “again contacted the Attorney General's Office and informed them he would now make himself available to the defense to impeach the credibility of the complaining victim,'' Murphy said.
Murphy also accused Spitzer on May 25 of directing Assistant District Attorney Ebrahim Baytieh to “draft'' a letter to Bromberg “in the hope of influencing his decision regarding the pending motion'' to reduce charges.
Baytieh refused, advising his boss it would be “improper,'' Murphy alleged.
“In summary, Todd Spitzer may be an unscrupulous lawyer and a prosecutorial fraud, but as a journeyman politician he is certainly not without persuasive skill,'' Murphy wrote.
“A man willing to repeatedly lie to the court, withhold discovery, withhold evidence from judicial review, waive investigative privilege, intimidate witnesses and despite attempting to improperly communicate with a sitting judicial officer, would have zero hesitation attempting to improperly influence a deputy Attorney General native enough to accept his phone calls.''
Murphy added that the victims and general public “can simply have no faith in the integrity of the Attorney General's review when they repeatedly communicated with an attorney colored with such an indelible ethical taint.''
Murphy said the Attorney General's Office has not contacted the two original Orange County District Attorney's Office prosecutors on the case, Kearns or another OCDA investigator assigned to the case or a detective from Newport Beach police who worked on it.
The Attorney General's Office's prosecutors have also failed to interview the victims in the case or the family members.
The Attorney General's Office's review “was far less a search for the truth than it was an exercise in the articulation of a preconceived doubt,'' Murphy argued. “The appearance of impropriety under these circumstances is manifest.''
On Thursday, Ospino will consider the request to reduce charges before a preliminary hearing to be held near year's end.
Robicheaux is charged with sexually assaulting five women and Riley is charged with three alleged victims. Previously, Robicheaux was charged with seven victims and Riley with five, but Bromberg granted a motion from prosecutors to dismiss charges related to two victims before he recused himself from the case last month.
Defense attorneys filed a motion to disqualify Bromberg as they did with Jones a year ago, but Bromberg denied the motion, saying it was untimely. But he stepped down anyway.
Defense attorneys failed to disqualify Jones from the case last year, prompting an appeal that the Attorney General's Office opposed and won. Ospino requested court papers related to the appeal to review.
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