DA Todd Spitzer alleges prosecutorial misconduct by predecessor in high-profile Newport Beach rape case

Orange County District Attorney Todd Spitzer alleges in a newly-unsealed letter to the state attorney general’s office that the still-active criminal case against a Newport Beach surgeon and his girlfriend accused of drugging and raping seven women was “rife with prosecutorial misconduct” while under the leadership of former DA Tony Rackauckas.

The accusations outlined by Spitzer – who is now in charge of the office prosecuting Grant William Robicheaux and Cerissa Laura Riley – bolster assertions by the couple’s defense attorneys that the former DA leadership pushed false claims of there potentially being more than 1,000 rape victims.

That has left Spitzer in the unusual position of questioning whether his own agency is able to guarantee a fair trial in the high-profile case.

Spitzer wrote in the Sept. 19 letter to California Attorney General Xavier Becerra that “there is no doubt the Orange County District Attorney’s Office cannot legally and ethically prosecute this case.” Several days later, state attorney general officials declined to take over the case, writing that they believed the OCDA’s office is “fully capable” of handling it.

The DA’s office has since re-assigned the case to new prosecutors in their sexual assault unit, and is “currently in the process of a complete re-evaluation of the case,” DA spokeswoman Kimberly Edds said.

Rackauckas did not respond Thursday to requests for comment. Robicheaux and Riley have both denied that any non-consensual sex occurred.

Attorney Philip Cohen, who is representing Robicheaux, said he felt vindicated by the DA’s letter, which touches on many arguments he and his fellow defense attorneys have made in court. Attorneys for the couple have indicated they plan to file a motion seeking to have the case dismissed for outrageous government misconduct.

“I don’t think you can put the genie back in the bottle,” Cohen said. “Long before this case was filed, there were so many instances of misconduct. I don’t know how any review erases that. You can’t just start from scratch.”

During a September 2018 news conference, Rackauckas alleged that the “clean cut and good looking” Robicheaux and Riley had drugged and raped their alleged victims, adding that investigators had found hundreds of videos belonging to them of intoxicated women, including some that depicted sexual acts.

In the midst of the news conference, during a confusing back and forth with reporters about how many videos and potential victims there were, Rackauckas responded “more than a thousand.” It wasn’t clear at the time whether he was referring to the number of victims or videos.

The allegations drew international press coverage. Some articles included references to there potentially being “more than a thousand victims,” while others, including the Register, wrote that prosecutors didn’t know how many potential victims there were.

Attorney’s for Robicheaux and Riley have alleged in court filings that the references to the videos brought an “unprecedented” amount of attention to the case, tainting the jury pool. Previously, prosecutors with the DA’s office wrote in court filings that it was simply a “poorly worded” answer by Rackauckas.

But in a recent deposition related to the case, Susan Kang Schroeder, Rackauckas’ former chief of staff, acknowledged proactively reaching out to some media outlets to tell them there could “potentially” be up to 1,000 victims.

“They were actively marketing the ‘1,000 victims’ story to the press behind the scenes, while today, under intense pre-trial scrutiny, are now denying such a claim,” Spitzer wrote in his letter to the attorney general.

Under American Bar Association rules, prosecutors are not supposed to make public comments that they know, or should know, could prejudice court proceedings, said Laurie Levenson, a Loyola Law School professor and ethics expert.

“I think some prosecutors do use the media as a weapon, but most realize that down the road a judge is going to frown on that,” Levenson said. “Cases are supposed to be tried in a courtroom, not in the media.”

Prosecutors initially filed charges against Robicheaux and Riley in connection to two alleged victims. Five additional alleged victims later came forward, leading to additional charges against the couple.

In his letter, Spitzer also noted that during the September 2018 news conference, Rackauckas did not mention that the Newport Beach Police Department had closed their investigation into the claims of the first two alleged victims, or that a DNA hit that brought the case to the DA offices attention was not tied to either Robicheaux or Riley.

Comments made by Rackauckas during a recent deposition showed an apparent divide between the DA’s office and the Newport Beach Police Department’s view of the case prior to it being filed. Asked if he believed police detectives had been negligent in the way they conducted their initial investigation before closing it, Rackauckas responded, “Yes, I do.”

“We are confident in our investigation and the efforts put forth by our detectives in this case,” Newport Beach Police Chief Jon Lewis said on Thursday.  “Our Department works diligently to seek justice for victims and to prepare our cases appropriately for prosecution.”

Spitzer previously indicated that he contacted the state bar to determine whether Rackauckas or Schroeder violated rules against pre-trial publicity.

The next hearing in the criminal case involving Robicheaux and Riley is scheduled for Dec. 13.