Orange County supervisors may have settled a veteran Orange County District Attorney investigator’s lawsuit for $2.75 million, but her attorney and District Attorney Todd Spitzer continued to clash Wednesday.
Spitzer’s spokeswoman Kimberly Edds issued a statement on Wednesday criticizing retired investigator Jennifer Kearns’ work on the criminal case against Newport Beach hand surgeon Grant Robicheaux and his girlfriend, Cerissa Riley.
Kearns sued in 2021, alleging Spitzer retaliated against her and placed her on six months of administrative leave for her work on the Robicheaux-Riley case, which made national headlines as it alleged the pair drugged and raped multiple women and became a political football in Spitzer’s campaign to unseat then-District Attorney Tony Rackauckas.
“Former District Attorney Tony Rackauckas said in a sworn deposition under oath that he believed that the Robicheaux case would generate significant free publicity which would help him get re-elected in 2018, and that it was Deputy District Attorney Mike Carroll and OCDA Investigator Kearns together who told him that there were at least a thousand women on video being sexually assaulted by Robicheaux and his girlfriend, a statement Rackauckas repeated at a nationally televised press conference just a few weeks before the election,” Edds said.
“After an exhaustive review of the actual evidence collected by the Newport Beach Police Department and the Orange County District Attorney’s Office, that election ruse by Rackauckas was absolutely and patently false.,” Edds continued.
“Under the California rules of Professional Conduct for Prosecutors, when a government prosecutor loses faith in their ability to prove the charges beyond a reasonable doubt they are ethically prohibited from pursuing those charges,” Edds said, explaining why Spitzer moved to dump the case, which was rejected by an Orange County Superior Court judge who kicked Spitzer’s office off the case, prompting the Attorney General’s Office to take it over.
“After five years of protracted litigation to correct Rackauckas’ unethical pursuit of the sex charges, what the Spitzer administration said from the very beginning was absolutely true — the sex charges could not be proven beyond a reasonable doubt against Robicheaux and Riley,” Edds said.
“All the sex charges were either dismissed by the California Attorney General’s Office or by an Orange County Superior Court judge,” Edds said.
Kearns’ attorney, Bijan Darvish, fired back that Spitzer smeared Kearns as a message to others who challenged him.
“Todd Spitzer accused Jennifer Kearns of grave misconduct, including dishonesty, the suppression of exculpatory evidence, and trying to falsify the number of sexual assault victims,” Darvish said in a response.
“Spitzer picked two district attorneys to conduct his de novo review and prepare the now infamous PowerPoint presentation — a document used to attack her credibility and rewrite the narrative.”
Darvish said an attorney, who had personally represented Kearns’ boss, Chief Paul Walters, was hired to investigate in what appeared to be a conflict of interest.
That attorney’s “bias could not be concealed,” Darvish said.
A later internal review from the command staff for the District Attorney’s investigations unit found that the attorney “did not conduct a complete, thorough, unbiased investigation and this was reflected in his Final Investigation Report,” Darvish said.
Darvish added that the review also “concluded that the March 18, 2020, Motion and PowerPoint contained `numerous unsupported allegations, misstatements, untruths, and factually wrong conclusions.’ In other words, the very process used to justify destroying Jennifer’s reputation was fundamentally flawed — yet the damage was done anyway.”
Darvish said that putting Kearns on administrative leave and “branding Jennifer a liar, and accusing her of misconduct was meant to send a message: If you go against Todd Spitzer, this is what will happen. You will be shamed and punished.”
Kearns’ attorney said that “many high-ranking officials knew what was happening, but no one stopped it. That failure was not passive — it enabled it. When those in power remain silent in the face of wrongdoing, they become part of it. That is why this case matters. When someone inside the system is targeted for telling the truth, it sends a message to everyone else to stay silent. And when silence wins, the public loses.”
Darvish said the internal review and settlement “clears Jennifer Kearns’ name and, at the very least, calls into question Spitzer’s motives and intent.”
The Kearns settlement was approved 3-2 with support from board Vice Chair Katrina Foley and Supervisors Vicente Sarmiento and Don Wagner.
Sarmiento said he supported it and the settlement of sexual harassment claims stemming from former high-ranking prosecutor Gary LoGalbo because, “No employee should ever have to tolerate harassment or retaliation in the workplace, and I supported these settlements so that the victims in these cases can have closure and can finally put the matter behind them.”
Supervisors unanimously rejected a $2.5 million settlement with Kearns in September, but earlier this month voted for the new agreement. Kearns agreed to leave the office and retire as part of the settlement.
“She agreed to resign her position so we’ve cleared the decks to a certain extent and the number made more sense than the numbers I’m hearing in some of these other cases,” Wagner said, explaining why he voted against the settlement agreements with prosecutors in the cases involving LoGalbo, who has since died.
“My thinking is we’re being very fair with these employees,” Wagner said of the prosecutors. “They remain our employees and we want to be fair with them… They’re still employees so the economic damages are relatively limited,” Wagner told City News Service.
But, Wagner added, he was open to settling the cases, but just at a lower cost.
“I get the mental challenges employees get so we’re trying to respect that,” he said. “It’s just I think we’ve been fair and hope they’ll take what we’re offering. Our budget is very, very tight this year… and these aren’t the only claims we have out there heaven knows.”
The last remaining LoGalbo suit is from former Orange County public defender Mohammad Abuershaid, who alleges LoGalbo referred to him as a “terrorist” while discussing the cases he handled.
Wagner said the Kearns case was different because it was so complicated.
“We could have lost that case at trial, which is why you settle, no question about that,” Wagner said. “We faced a number of challenges in this case, which is why we settled and which is why I was OK with a settlement.”
Board of Supervisors Chairman Doug Chaffee, who voted against the Kearns settlement but supported settling the LoGalbo cases, said he felt the price tag on the Kearns deal was too high.
“I thought it was way too much money,” Chaffee said. “And why are we throwing in the resignation. Making that a requirement struck me as punitive. I thought it was just too much money.”
Chaffee said he also wondered “where’s the economic loss” because Kearns was not ousted before the settlement.
Supervisor Janet Nguyen, who voted against all of the settlements, declined comment.
On Tuesday, the board voted 3-2 to approve a $995,000 settlement for Clarisse Magtoto and $988,000 for Amy Tallakson, both Orange County deputy district attorneys who worked with LoGalbo.
Two other $925,000 settlements were approved earlier this month for Deputy District Attorney Mallory Miller and former prosecutor Shabnum Azizi, now an attorney in San Diego.
The settlements followed a $3.5 million verdict won last month by Deputy District Attorney Bethel Cope-Vega against the county.
Cope-Vega’s victory followed a triumph for Tracy Miller last year in her lawsuit against the county, Spitzer and his former top assistant, Shawn Nelson — now an Orange County Superior Court judge.
Miller, who won a $3 million verdict and $1.5 million in attorneys fees, said she was forced to retire due to retaliation for moving to protect whistleblowers alleging harassment from LoGalbo.
The amount of attorney fees Cope-Vega will receive has yet to be determined. It is unknown how much the firm representing the county, Sheppard-Mullin, has billed the county.
The county’s risk-assessment attorneys had negotiated a settlement for about $6 million that would have resolved all of the cases, but the Board of Supervisors rejected it in August 2021, and hired Sheppard-Mullin to defend the county.
The cost for the county has risen to about $11.8 million, or nearly twice as much as it would have cost to settle it initially.