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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

LISA JOYCE RUBIN Petitioner v. ARCHIE GEE, Director, et al. Respondents

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Civil No. PJM 99-621

OPINION
I. On November 11, 1990, a jury in the Circuit Court for Montgomery County, Maryland, convicted Lisa Joyce Rubin of the crimes of first degree murder and the use of a handgun in a crime of violence. She was sentenced to life in prison, all suspended except for 30 years on the murder charge and 20 years on the handgun charge, the sentences to run concurrently. Rubin appealed to the Maryland Court of Special Appeals, but before that court could consider the case, the Maryland Court of Appeals granted certiorari and affirmed her convictions. See Rubin v. State, 325 Md. 677, 602 A.2d 677 (1992). On September 29, 1995, Rubin filed a petition for post-conviction relief in the Circuit Court for Montgomery County. Following an evidentiary hearing, the post- conviction court (James L. Ryan, Judge) granted the petition and ordered a new trial. The State of Maryland then filed an application for leave to appeal to the Court of Special Appeals. On November 6, 1997, without the benefit of a transcript

of the post-conviction hearing (which the State had not ordered) and apparently without the benefit of full briefing, the Court of Special Appeals, in an unpublished opinion, summarily reversed the Circuit Court's order granting a new trial. When Rubin filed motions for leave to supplement the record and for reconsideration, the Court of Special Appeals recalled its opinion but soon after, in a second unpublished opinion dated July 28, 1998, again reversed the decision of the Circuit Court. Rubin's application for certiorari to the Maryland Court of Appeals was denied. See Rubin v. State, 351 Md. 667, 719 A.2d 1262 (1998). The present petition for habeas corpus relief followed. Rubin argues in this Court that the decision of the Court of Special Appeals was constitutionally infirm as a matter of law and fact in that it improperly denied her claim of ineffective assistance of counsel based on her attorneys' conflict of interest. The Court agrees. II. A) There is no question that on April 24, 1990, Rubin shot and killed her husband,

Timothy Warner. Rubin claimed that she acted in self-defense. At the time, she and her husband were beginning divorce proceedings. According to Rubin -- who was the only witness called by the defense at trial -- certain critical facts pertaining to the couple's relationship led up to the homicide. During her marriage, Rubin had had an affair with a William Glisson, at the end of which Glisson physically assaulted her, injuring her wrist. Rubin and Warner subsequently brought a civil action against Glisson which went to trial in January 1989. During that trial, Glisson was poisoned when he drank out of a Coca-Cola bottle that lab tests revealed contained a cyanide substance. No one was ever charged in connection with that incident. Following the trial against Glisson, Rubin and Warner separated. Rubin hired Prudential

Associates, a private investigation company, to pursue the possibility that Warner might be having an affair. Robert Miller, President of Prudential, and Robert Leopold, an investigator at the company, worked on Rubin's case and soon determined that Warner was indeed having a liaison. In April, 1990, the Glisson case resurfaced. In that month, Rubin told Miller that Warner had told her in January 1990 that it was he who had poisoned Glisson, revealing to her some of the details of his actions. Rubin, who was frightened of Warner,1 wanted to informthe authorities of what she knew. In consequence, Miller referred Rubin to Darrel Longest, Esquire, a private attorney and formerly Deputy State's Attorney for Montgomery County, who she hoped would arrange for her to meet with the authorities, disclose what she knew about the poisoning, and obtain immunity for her. Rubin quickly retained Longest, who immediately hired Miller to work as his investigator in the case. By April 10, Longest had arranged with Matthew Campbell, Deputy State's Attorney for Montgomery County, for Rubin to receive immunity in the Glisson matter. On April 20, Longest and Rubin had a meeting with Montgomery County Detective Charles Shawen at Longest's office, during which Rubin told Shawen what Warner had confessed to her about the poisoning. In the late afternoon or early evening of April 24, 1990 -- four days after she had met with Detective Shawen -- Rubin met with Warner at a veterinary clinic in Gaithersburg in order to have the couple's dog Mutley put to sleep. Rubin testified that at the meeting, during a walk with Warner and the dog in the woods behind the clinic, she brought up the fact that Warner had admitted that it was he who

1

Rubin testified at trial that, in the course of these events, her fear of her husband had led her to purchase two handguns, a .38 caliber Ladysmith model Smith and Wesson and a .22 caliber Beretta. One of these, she said, she intended to carry on her person, the other she would keep at her home. See Rubin , 325 Md. at 557-59, 602 A.2d at 679-80.

had poisoned Glisson.2 Rubin testified that Warner told her she had better not tell anyone about that, but Rubin said it was too late, that she had already gone to the authorities. According to Rubin, Warner became enraged and pulled out what Rubin believed to be a gun. She therefore took her Smith and Wesson handgun from her purse and shot him. She testified that because he kept coming at her, she shot him again -- a total of 8 shots, 3 in his chest or arms and 5 more in the back, including a reloading. Rubin then went back to the veterinary clinic where she called Miller in an effort, she testified, to reach Longest. Reaching Miller, she arranged to meet him at a neutral point from which the two of them, together with Leopold, returned to the scene of the crime. In short order, but before the police were contacted, Longest and Gavin were called and arrived on the scene. The Court of Special Appeals, in its opinion of July 28, 1998, accepted without dispute the following additional facts found by the post-conviction hearing judge pertaining to the night of the homicide: Petitioner [Rubin] had apparently taken a large amount of medication, and Longest told Miller and Leopold to take her to the hospital for a possible drug overdose and have her admitted under a false name. Miller and Leopold transported Petitioner to Montgomery General Hospital and checked her in under the name Sharon Peterson. [Judge Rodowsky in his Opinion for the Court of Appeals stated that Mrs. (sic) Rubin was "registered" at the hospital but was not admitted for treatment.] Petitioner was discharged at 3:00 a.m. on April 25 and spent the remainder of the night at Miller's house. While petitioner was at the hospital, Longest notified the police that Warner was dead, but did not disclose petitioner's identity, and the crime scene was then processed.

2

"Rubin's version of the events is that she had hoped to record at the meeting Warner's admissions of attempted murder." Rubin , 325 Md. at 561, 602 A.2d at 681. Following the homicide, a minicassette recorder and two minicassette tapes were found in Rubin's purse. See id. at 683.

Petitioner spent the rest of April 25 with Longest and Gavin. Gavin drove Petitioner to her bank to withdraw $105,000 to be used as a retainer fee and to cover expenses. In addition, Longest took possession of some of her property, which included a jacket, a purse, .22 caliber bullets and a .38 caliber Smith and Wesson handgun. These items were kept at the law offices of Longest and Gavin. After discussions with the Office of the State's Attorney, during which it was discovered there was a warrant out for petitioner's arrest, petitioner was turned in to the police that evening at 7:00 p.m. State v. Rubin, No. 38, September Term, 1997, slip op. at 3-4 (Md. Ct. Spec. App. July 28, 1998). Except for testifying that she went to the hospital following the homicide, none of the facts set out in the foregoing two paragraphs of the Court of Special Appeals' opinion were brought out during Rubin's direct trial testimony. It was left for the prosecution -- with careful pruning of any reference to Longest and Gavin's role -- to bring out the more salient points on cross-examination: Q. You went to the hospital and said that you attempted to commit suicide because of a drug overdose. Is that right? . . . The Witness. I didn't check myself in. I don't know what they said. Q. Well, when you went there, what was the purpose of your visit? A. They decided to take me there. Q. They decided to take you there. Didn't you relay information to the private investigators that you had tried to overdose after the fact and that you tried to kill yourself? A. No. Q. No? When you went there, wasn't the name Sharon Peterson initially given to the hospital? A. Not by me. Q. The private investigators gave the name Sharon Peterson? A. I don't know who gave the name . . .

Q. It is only after the private investigators and everyone starts calling you Lisa and the hospital staff said "Why is she going by Lisa," that then you correct the record and give your proper name as Lisa Rubin. Is that right? A. I couldn't have corrected a record that I didn't know wasn't correct in the first place. *** Q. When you turned yourself in, the police had an arrest warrant for you, did they not? A. Yes. *** Q. Was Mr. Longest aware of the fact that you spent the night at Mr. and Mrs. Miller's? A. Yes. *** Longest and Gavin did not serve as Rubin's trial counsel. On their recommendation, Rubin had engaged Barry Helfand in this capacity and Helfand in turn engaged Alan Goldstein to assist him. 3 Nevertheless, though neither sat at counsel table during the trial, Longest and Gavin at all times remained as co-counsel up to and throughout the trial.4 Neither Longest nor Gavin was called at trial to testify as to their role in directing the actions that Rubin took following the homicide. In his closing, however, the prosecutor referred to those actions:
3

Rubin subsequently hired Fred Joseph to serve as additional co-counsel.
4

The nature and extent of Longest and Gavin's role as co-counsel will be discussed in the course of this Opinion.

[Rubin] ends up spending that night with [Mr. Miller] and she meets with him and brings him back to the scene and then after the lawyers get involved she goes into the hospital and checked in under a fake name, Sharon Peterson, and then spends the night at Mr. Miller's house. Only after the police get a warrant and they put the case together and she is notified of that warrant, then she turns herself in at the police station. Does she flee from this scene? You bet. Does she lie? You bet. Does she show consciousness of guilt? In other words, "I am an innocent man. Let's go to the police. I will explain what happened." Never. Never. The jury's verdict of guilty on the first-degree murder and handgun charges followed shortly after. III. The core defense strategy in the case, as suggested by the Maryland Court of Appeals on direct appeal, was that Longest and Gavin had an attorney-client relationship with Rubin such that Leopold, as an agent of Longest and Gavin, should have been prohibited by the privilege from testifying when called as a cooperating witness by the State. See Rubin, 602 A.2d 677. The Court of Appeals agreed with that proposition but a majority of the court (over a vigorous dissent by then Associate, now Chief Judge, Bell) held that even without Leopold's testimony it could not be said that reasonable doubt existed as to Rubin's guilt. The convictions were thus affirmed. In the course of its opinion, the court touched upon the legal and ethical correctness of Longest and Gavin's removal, possible alteration and retention of evidence. Indeed, the State had argued that because of Longest and Gavin's actions in removing the evidence, the crime-fraud exception to the attorney-client privilege was brought into play and as a result Leopold was correctly permitted to testify.5

5

The State's brief on appeal included this paragraph:

The court, as indicated, disagreed, holding that the privilege applied but that permitting Leopold's testimony was harmless error. At no point, however, did the court consider the propriety of Longest and Gavin's actions from the standpoint of ineffective assistance of counsel.6 That issue remained, as is usually the case, more
The crime-fraud exception applies to defeat the client's privilege even "where the pertinent alleged criminality is solely that of the law firm." In re Impounded Case (Law Firm), 879 F.2d 1211, 1213 (3rd Cir. 1989). In deciding whether the exception applies there must be a prima facie showing of criminal and fraudulent conduct . . . no doubt this exception applies in the instant case given the conduct of Rubin and her attorneys Longest and Gavin. After killing her husband, Rubin called investigators Miller and Leopold and directed them to the crime scene. They altered the crime scene by unleashing the dog Muttley (sic) from Warner's dead body (E.289-90). After Longest arrived, he directed the investigators to take Rubin away from the murder situs, to check her into a hospital using a false name, and not to tell anyone what had happened (E.17, 512). Longest took possession of the murder weapon, Rubin's purse and the .22 caliber bullets contained therein, placing them in his law office (E.339-41, 345-46). This evidence too was altered, in that the bag of bullets was removed from Rubin's purse where they earlier had been seen by Leopold (E.345-46, 299-300). The above facts make out a prima facie case of several crimes. One may be an accessory after the fact to a murder by altering the crime scene, attempting to harbor the accused, and secreting evidence of a crime. Osborne v. State , 304 Md. 323, 326 (1985). Similarly, these acts could constitute the crime of obstruction of justice under Article 27,

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