A judge put off a ruling Friday on whether a case against a Newport Beach doctor and his girlfriend, who are accused of drugging and raping several women, should be removed from Orange County prosecutors and handed off to the state Attorney General’s Office after the defense accused the jurist of bias.
Defense attorneys filed a motion Friday morning to disqualify Orange County Superior Court Judge Gregory Jones, who read it and said he needed time to file an affidavit responding to the claims of bias. He invited the other attorneys involved in the case to also respond to the allegations.
Jones set another hearing for next Friday to consider the motion.
Defense attorney Philip Cohen, who represents Dr. Grant Robicheaux, said he received evidence Thursday afternoon from the District Attorney’s Office alleging Jones’ bias in the case against the 39-year-old physician and Cerissa Riley, 32.
The defense attorneys allege in their motion that Jones “implored” attorney Matt Murphy to appear at a hearing in February when prosecutors were asking to dismiss charges against the couple, despite the fact that a day before Murphy had taken action to withdraw as attorney for one of the alleged victims. The woman later rehired Murphy, who agreed to again represent her.
Murphy brushed aside the claims.
“In the history of desperate Hail Mary passes this is about as desperate as it gets,” Murphy told City News Service. “(Jones) did everything right. This is a laughable, desperate move.”
Murphy, who represents a total of four alleged victims, previously filed a motion to have Orange County District Attorney Todd Spitzer’s office recused from the case.
The two prosecutors assigned to the case filed a brief on Thursday saying their office did not object to Jones referring the case to the Attorney General’s Office.
Murphy said he would press forward with asking Jones to recuse Spitzer’s office instead of just assigning it to the Attorney General’s Office, which would spare Spitzer the political embarrassment of a recusal. The Attorney General’s Office could assign it to a special prosecutor.
It is debatable whether Murphy as an attorney representing the Marsy’s Law rights of the alleged victims has the standing to motion for the recusal of prosecutors. Those types of motions are normally brought by defense attorneys, but in this unusual case, prosecutors and defense attorneys agree that the charges against the defendants should be dropped.
Murphy wrote in his motion that the “interesting aspect of the present case is the shocking level of unfairness on the part of the prosecutor is not directed toward the charged defendants … but rather toward the victims and toward the law-abiding community that has an interest in its laws being evenhandedly enforced.”
Murphy took issue with prosecutors mistaking the amount of Gamma Hydroxybutyrate, the date rape drug, found in Robicheaux’s home by police. A photograph in evidence of a “clear plastic water bottle, located inside the same safe where Mr. Robicheaux’s stored all his other narcotics… shows several fluid ounces of a yellow liquid filling the bottom two inches or so of this bottle,” not the claimed “equivalent of .02 teaspoons or approximately one third of a single drop of fluid from an eyedropper,” Murphy said.
“From the perspective of public confidence in the integrity of the District Attorney, therefore, their representations about the amount of GHB either represent the height of prosecutorial incompetence, or else willful silence in the face of a deliberate attempt to mislead a judicial officer,” Murphy wrote.
Murphy further argued that if prosecutors were correct in asserting that the women voluntarily took the GHB, then the defendants should be charged with a crime for furnishing an illegal narcotic, but the statute of limitations expired in April.
“Put simply, this is either another example of prosecutorial incompetence, or willful neglect conforming to the political goals of the District Attorney and his back-room arrangement with the defense,” Murphy wrote. “Or — perhaps — both. Either way, the community can have no faith in a District Attorney who advances factual theories containing implicit violations of California law only to then either willfully, or negligently permit the statute of limitations to expire.”
Murphy also revealed in his motion that Spitzer’s office has also backed off the firing of the investigator on the case, Jennifer Kearns.
“If true, as Mr. Spitzer continued to rail against the work of this investigator in his press release, another division of his office was simultaneously attempting to bring her back to work,” Murphy said. “Mr. Spitzer has publicly criticized investigator Kearns so many times he has become a walking (defense attorney) challenge to her future value as an investigator. In his mean-spirited efforts to bully and scapegoat this woman, he has quite literally made himself a potential witness in any future proceeding in which she might testify.”
The prosecutors on the case, Rick Zimmer and Karyn Stokke, said the judge’s refusal last week to dismiss the charges outright was “nothing sort of devastating” to them.
“Throughout our involvement in this case, there has been a persistent theme that we have thrown away our ethics, integrity and reputations by succumbing — either consciously or subconsciously — to pressure from Mr. Spitzer to reach a foreordained conclusion,” the prosecutors wrote. “Or, alternatively, we are painted as pathetic incompetents brought in to do a job for which we have neither the experience nor talent.”
They said “neither of these scenarios is even remotely true. But, we are extremely disappointed that the court appears, at least in part, to give credence to these utterly baseless allegations.”
The prosecutors said their review of the case “was conducted without interference and without any pre-ordained conclusion. Our (dismissal) motion was based on our sincere — and continuing — belief that the totality of the evidence in this case is insufficient to prove the charges beyond a reasonable doubt. We have repeatedly told Mr. Spitzer that we would refuse an order to prosecute this case as currently charged and we remain steadfast in that refusal.”
Because the prosecutors do not feel they could move forward with the case, they said they do not object to it being referred to the Attorney General’s office.
The prosecutors alleged in their dismissal brief that the defendants “engaged in a swinger lifestyle and openly pursued scores of women for consensual sexual encounters.”
It’s a sharp contrast from when charges were filed in the case, as the two were characterized by the prosecution as sexual predators who used their good looks to lure unsuspecting women before drugging and raping the victims in the doctor’s Newport Beach home.
Prosecutors now say that some of the alleged victims have told investigators at times that they had consensual sex with the two. One alleged victim has a “history of manufacturing events and a documented instance of giving false information,” and another snorted about 15 lines of cocaine that she was aware was “laced with ketamine” before waking up to a nude Robicheaux “spooning her,” prosecutors allege. They say she refused to undergo a sexual assault exam.
Spitzer initially backed prosecutors on the case after he was sworn in, but grew more concerned as evidence came out of civil litigation in which an alleged victim is suing the doctor and his girlfriend.
Spitzer has contended that his predecessor used the case for publicity during a failed re-election bid, prompting the D.A. to ask the Attorney General’s Office to consider taking over the case as he felt it had become too politicized in his office.
The Attorney General’s Office said any conflict was cured by Spitzer’s election and declined to take over the case.
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