The Orange County district attorney had announced Tuesday he wants to drop the case, claiming insufficient evidence.
That was widely expected to happen in court on Friday.
Instead, the Superior Court judge said he needs more time before making a decision to dismiss the charges.
Surgeon Grant Robicheaux, now 39, and his girlfriend Cerissa Riley, 32, were accused in 2018 of multiple sexual assaults, when then-Orange County District Attorney Tony Rackauckas told reporters that investigators were sifting through thousands of videos and photos on Robicheaux's cellphone - some showing women barely responsive.
Prosecutors seek dismissal of all charges in rape case against Newport Beach surgeon, his girlfriend
Even if and when the case is dropped, Robicheaux's attorney says it has ruined his clients' lives.
"The biggest problem in this case continues - what do Grant and Cerissa do with the rest of their lives and what confidence can the public have that they are not rapists, they're not monsters, that they're not villains?" said attorney Philip Cohen, representing Robicheaux.
The defense team was shocked Friday when the judge said he wasn't ready to drop the case yet as Orange County District Attorney Todd Spitzer had requested. He said he needed more knowledge of the case and evidence first.
"Still in shock, still can't believe this has happened to us," Robicheaux said.
Couple accused of drugging, raping women break their silence
"I am absolutely confident that whatever questions the judge had and may have will be sufficiently and overwhelmingly answered when he gets the opportunity to see the reports," Cohen said.
The DA's office says it stands on its three-month review of every piece of evidence, determining there wasn't enough to proceed.
In a statement, DA Todd Spitzer said: "Judge Jones has been involved in this case from its inception and it is completely reasonable that he would want a thorough understanding of the facts."
Part of Spitzer's argument has been to put blame on former DA Tony Rackauckas, accusing him of using the publicity of the case to help his campaign, therefore embellishing the facts.
"Setting all that aside, the tragedy is just dumping the victims here," Rackauckas said.
But the judge stood firm Friday, saying politics have infected the case, making it a toxic cocktail.
All counsel must submit final argument briefs by March 19 and then the next hearing is set for April 3.
The additional time gives the attorneys for victims more time as well.
"This gives us an opportunity to also evaluate the information to understand why the DA is making the decision that they're making and for us to object if we'd like to judge if we'd like that charge to remain," said attorney Mike Fell, representing one of the alleged victims, identified as Jane Doe 4.
Fell read one of two victim impact statements in court, providing an emotional view of the motion to dismiss and their firm stance on what happened.
Jane Doe 4 victim impact statement:
I am stronger now and will not let someone's actions dictate who I am and how I live my life.
I am strong and will move forward from this and get my identity back.
I am more than someone only to be remembered as a "victim." I will take my power back.
The defendants intended to shut me down. I will not allow anyone to control me and take away my identity.
They may have taken the last 3 years of my life, but I control my future.
Their actions will haunt them for the rest of their lives while I will live and move on with a clear conscience.
I will finally be free and allow myself to heal because at the end of the day, what they did not take away from me was my courage, dignity and strength.
Another statement was also read in court Friday from an alleged victim, identified as Jane Doe 1. Here is the text:
Let me begin with thanking the Court for allowing me to make this statement with the help of a victim witness advocate. As I am sure you can imagine, this has been an extremely difficult experience for me.
One of the worst days of my life was when I was raped by Grant Robicheaux.
It is difficult to describe what I have gone through as a result of this experience.
I initially did not report the incident. I was a first-year law student and terrified that reporting this would impact my future career. I was even more concerned that it would break my father's heart. I was scared that people would judge me for even being in that situation. I was scared no one would believe me. While I was concerned that Robicheaux would do this again and with the fact that he has access to drugs that could incapacitate a woman given he is a doctor, the risk of reporting seemed too high. I was working full time and in an evening law school program. I did not have the bandwidth to take it on.
I suppressed this horrible experience in the recesses of my mind for 9 years. I did my best to never think about it. I focused on getting through law school and building my legal career, which I have done.
In September 2018, I sat down at my work desk with my coffee. I had gotten to work early so I had time to look at the news. On the first news site that I went to, I saw his mugshot and his name. The man that raped me was in the news for raping others. I jumped up from my chair, ran to my office door and slammed it shut. I stood with my back to my door. I started to crumble to the floor. I can't put into words the feelings I experienced. Shock. Horror. Numbness. I struggled to catch my breath. I knew this would happen, but I was still in complete shock. And then, this tremendous feeling of guilt set in... responsibility for the victims.... This was on me. Every victim that was raped by Robicheaux after 2009 was on my hands too. I didn't stop him when I could, and I am forever so incredibly sorry to the women that came after me.
After hours of deliberation, I contacted the OCDA and said that I was a "witness." I assumed that my claim would be time barred, but I could testify as to Robicheaux's character. I could confirm that Robicheaux is a psychopath, and that was the least that I could do for the victims - help them establish their own cases.
I was interviewed by Jennifer Kearns, a kind, supportive, and thorough DA investigator. When I gave her my statement, with the exception of my closet friend, it was the first time that I told anyone the details of what happened that evening. I struggled using the word "rape" because it made me sick. I gave Jennifer Kearns my emails and online communications that established I socialized with Robicheaux and that it abruptly ended after that incident. She listened to me. She was professional, and it was obvious that she cared.
After I provided the statement, I did not hear from the OCDA's office for a week or two. When they did call me, they asked if they could bring charges on my behalf. I had not even considered charges being brought on my behalf because, again, I thought my claims would be time barred.
I agreed that they could.
I cried afterwards because I felt heard and believed. I also for the first time processed that I had been raped, and the events of that evening that I had successfully buried for so long were constantly replaying in my head. I felt dead inside. I frequently found myself with tears streaming down my face in the middle of the day as I was working. My emotions were completely uncontrollable and it was hard, but at least there would be justice.
Thereafter, I spoke to Jennifer Walker several times, a deputy district attorney that has a wealth of knowledge and experience. She was a consummate professional. Since she could not meet me in person, she went out of her way to set up FaceTime calls so I could feel comfortable with her and the process.
The Defense Attorneys:
Robicheaux and his partner hired attorneys Thomas Ferlauto, Shawn Holley, and Philip Cohen to defend him in the criminal case and civil case. (There was a civil case brought by another victim with respect to a different incident involving Robicheaux.)
Thomas Ferlauto and Philip Cohen retained a private investigator, Russell Greene, in connection with the criminal case. On November 6, 2018, Greene called my office nonstop. I did not answer his calls because I was trying to keep my composure at work: in fact, I was in the middle of a deposition when he began what can only be described as a campaign of harassment.
The following day, I was getting ready to go to my wedding dress fitting when I received a call from my secretary, who was in the office. She told me a man that had identified himself as a private investigator told her that he was going to come to my office to speak to me. She told him that I was not in. In response, he told her that he would come to the office anyway.
After I hung up with my secretary, I called the number that Greene had left the day before and asked him to stop calling my office. I then informed my work about the criminal case and my involvement because I was worried Greene would make good on his promise and just show up at my office. I was an hour late to my dress fitting, I forgot my shoes which were critical for alterations, and I was on the verge of tears. During my dress fitting, I cried, but not because I was in my wedding dress -- I don't even know if I ever really looked at myself in my wedding dress that day. I cried because I was overwhelmed with the thought of a man coming to my work to get a statement from me, I cried because I had to tell my work that I was a victim in a criminal case, I cried because I was already feeling dead inside and the aggressive tactics of the investigator only exasperated those feelings.
Thomas Ferlauto and Philip Cohen are also defending Robicheaux in the civil case, but they added on Shawn Holley to assist.
In connection with the civil case, they first started by repeatedly sending a process server to my parents' home to serve me with a subpoena. For me to recount every detail and every incident involving my innocent parents, this would statement would take an hour to read. Instead, please accept the following highlights of what they put my family through.
On Sunday, November 18, 2018, a woman arrived at my parents' home and told my mother that there was a gas leak coming from our house. There was not.
Later that day, at around 7:00 p.m., my father arrived at his home. Shortly thereafter, a woman arrived looking for me. The woman stated she was a friend of mine "from the neighborhood." I am very close to my father, he knows all of my friends, and he was immediately suspicious. At this point, my father was extremely upset because he did not know the woman and grew concerned for my safety. The woman eventually left.
Please understand, after I had been raped, I went through a time of profound thought, and I made the deeply personal decision to not inform my parents about what happened to me. It is difficult to describe my feelings, and it may sound strange, but I wanted to protect them from the emotional burden of that terrible night.
By the evening of Sunday, November 18, 2018, my parents were beside themselves with worry. They did not know who these people were or why they were looking for me. They did not understand their rudeness. Above all, they feared for my safety. After a heart wrenching decision to protect them from all of this, I was forced to tell them what happened to me.
I had to tell my loving, caring, and protective father that I had been raped. This was terrible for him. I explained the pending criminal case and my involvement. I cannot express how difficult it was to listen to my father absorb what I was telling him. He is a kind and fundamentally good man. He did not deserve this.
My parents are in their late sixties and I do not live with them. Process servers are agents of the attorneys who hire them. It is shameful that Robicheaux's attorneys employed individuals with so little professionalism and brazen disregard for the psychological impact upon truly innocent people. My parents had nothing to do with this.
Under the law, are family members not also supposed to be protected? Are they not also supposed to be free from harassment, intimidation and abuse? This literally went on for weeks and resulted in my parents experiencing emotional distress on a level difficult to describe.
The defense eventually stopped harassing my parents, but this meant they just focused their efforts directly at me. On November 20, 2018, I was out of the office at client meetings when I received an e-mail from my secretary that stated "Mark Lewis" was in the office and that he was looking for me. Staff informed Mr. Lewis that I was not in the office and that he had to leave. Somehow this man had bypassed security in the building.
Eventually, Judge Schwarm, who was presiding over the civil case, became aware of this and determined that criminal victims could not be deposed. Efforts to serve me stopped.
Unfortunately, the Court's correct ruling did not stop the defense from continuing to abuse the discovery in the civil case. Instead of coming after me, they targeted one of my closest friends. In the criminal case my friend could have simply refused to speak to a defense investigator. In the civil case, however, the defense used the power of subpoena to force her to speak. They served her with a subpoena and legally obligated her to sit through a deposition.
It is important to understand that I had nothing to do with the civil case. I had no interest in suing anyone and even less interest in the defendants'' money. This case was filed by a woman I do not know, regarding events I did not witness. My friend had literally NO information about the victim or what happened to her.
Over the course of nearly 3 hours, the defense rudely, discourteously, and aggressively went after my friend. Instead of referring to me by "Jane Doe," the defense also repeatedly violated my legal right to anonymity by using my real name. Among other things, Thomas Ferluto also asked my friend the following questions:
(1) whether I was "promiscuous,"
(2) whether I "would allow a man to finger (my) vagina if (I) was in fear of being raped," and
(3) whether I would "allow (myself) to be fingered or digitally penetrated by a man that (I) had just met."
These are quotes taken directly from the transcript.
Any attorney would know that these questions were morally reprehensible and unethical. But, even more disappointing, was the presence of Shawn Holley - a famed female defense attorney I once admired. She even spoke at my law school. A strong, intelligent, and accomplished woman.
But there she was: sitting next to a man as he grilled my friend with the most degrading, inappropriate, and legally unethical questions about my sexual history. Ms. Holley could have taken Thomas Ferlauto outside and told him to calm down. She could have asked for a break and told him to stop. She could have stopped it. But she did nothing.
As I read the transcript, I could not help but wonder whether she would allow a man to ask her daughters the same questions had they been in the same situation as my friend. Would she allow a man to ask those questions about her daughter if her daughter was a victim of sexual assault? I wonder if Ms. Holley understands that by sitting there, in silence, she contributes to the fear shared by so many women that reporting serious crimes will result in their public humiliation and shame. After reading that transcript, I have a very difficult time believing she is still a force for positive change.
The Orange County District Attorney's Office:
As a victim of a violent crime, I am entitled by law to be given notice of any critical developments in the case. A decision to dismiss certainly seems like such a development. Despite this, I learned of Todd Spitzer's decision less than 10 minutes before the press conference on February 4. I was notified by a victim's advocate from his office. This woman was very nice, but could not provide any answers about how this decision was made. Less than 10 minutes. Is this really a meaningful opportunity to be heard? Is this really what the law contemplates when it addresses a victim's right to communicate with the prosecution BEFORE critical decisions are made?
Less than 10 minutes.
During the call, I was also informed by the advocate that I could speak to Mr. Spitzer after he was done with his press conference. This was the first time that I was given the opportunity to speak with Mr. Spitzer. How can any lawyer, much less a prosecutor invested with the public trust, make such a critical determination about the credibility of a witness without even meeting them?
Mr. Spitzer never met me. Mr. Spitzer never spoke to me. But Mr. Spitzer held a press conference and questioned my credibility on national television. This is a man who is supposed to be on the side of victims. He is a man to whom every victim of sexual assault in Orange County must place their trust.
Less than 10 minutes.
I told the victim advocate that I wanted to speak with him. I wanted to speak to the man who determined, without having ever met or spoken to me, that I would not be believed. Did he think the case could not be proven, or had he made the unilateral decision that I had not been raped?
On February 4, I spoke to Mr. Spitzer at 3:15 pm. His tone was formal, and he had over 5 people on the call with him. I wanted to understand why this was happening. I wanted to understand why he believed there was no evidence of a crime when there are seven charged victims in this case. Do the victims not corroborate each other? Were drugs not found in Robicheaux's home? What about 911 calls?
Mr. Spitzer offered to give me a copy of the PowerPoint he had already shared with America. This is the same presentation where he apologized to the man who raped me.
Mr. Spitzer spoke about his political predecessor and other issues that were not helping me to understand his decision.
When I asked Mr. Spitzer why a witness statement is not evidence of a crime, he told me that he felt I was truthful, which was in hindsight, intended to soften the blow that he was about to deliver. He started to run through my story and, in short, pick it apart. The man that campaigned as a victim's advocate was doing what I had pictured the defense attorneys would do at trial. He diminished my story in front of room full of strangers with me on speakerphone and, in effect, told me that it was unclear whether I consented to sex.
I assure you, your Honor, that there was nothing unclear about the moment when I was raped.
I understand Mr. Spitzer is the elected District Attorney and I have tremendous respect for the role of prosecutors in our system. I struggle, however, with the idea that a man who has never tried a rape case made the determination that there was insufficient evidence to prosecute my rapist. After speaking with Mr. Spitzer, I honestly still don't understand why seven women, who don't know each other, can describe being raped by the same man, yet the OCDA announces there is "No Provable Evidence." Whatever that means. The other people on the phone seemed professional and receptive, but clearly, Mr. Spitzer's mind was made up.
I hung up the phone with the painful realization that who I am as a person, what I had to say, and everything my family and I have gone through, just doesn't seem to matter.
Your honor, today I not only wanted to detail what has happened to me since reporting this crime, but I also wanted the opportunity to respectfully request that the Court take some time and consider not dismissing this case. There is no reason this weighty decision needs to be made today. At least, with the Court, I will know that someone listened to me, and considered what I had to say before making such a profound decision. While I understand the difficult position of the Court, I have looked into this issue and know there is California precedent for denying a prosecutor's motion to dismiss.
While I do not know Mr. Spitzer's motivations, and I desperately want to believe they are earnest, I know what happened to me. And I firmly believe there is powerful evidence of a crime here. There are 7 victims with their fingers pointing at Robicheaux. Mr. Spitzer also cited lack of video evidence as a justification for dismissal. I am curious how many sexual assault crimes are actually committed on video. When did video become an element for a crime virtually always committed in the dark? How many sexual assault cases are successfully prosecuted by his office with a single charge, and no corroborating victims?
I know what happened to me, and nobody (on a conference call no less) can tell me I'm wrong.
If the Court does dismiss this case, I urge the Attorney General's Office to review this matter to determine whether Mr. Spitzer's assessment of the case is accurate -- because I assure the AG's office, it is not. Please speak to Jennifer Walker. Please speak to Jennifer Kearns. Please speak to the victims. Please do something.
Thank you for listening to me.
Jane Doe # 1