Rubin v. Gee

• Decision Date: 05 June 2002
• Docket Number: No. 01-6411.,01-6411.
• Citation: 292 F.3d 396
• Parties: Lisa Joyce RUBIN, Petitioner-Appellee, v. Archie GEE, Director; J. Joseph Curran, Jr., Respondents-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 396

292 F.3d 396

Lisa Joyce RUBIN, Petitioner-Appellee, v. Archie GEE, Director; J. Joseph Curran, Jr., Respondents-Appellants.

No. 01-6411.

United States Court of Appeals, Fourth Circuit.

Argued October 30, 2001.

Decided June 5, 2002.

ARGUED:

Gary Eugene Bair, Assistant Attorney General, Criminal Appeals Division, Office of the Attorney General, Baltimore, Maryland, for Appellants. Fred Warren Bennett, Bennett & Nathans, L.L.P., Greenbelt, Maryland, for Appellee.

ON BRIEF:

J. Joseph Curran, Jr., Attorney General of Maryland, Criminal Appeals Division, Office of the Attorney General, Baltimore, Maryland, for Appellants. Michael E. Lawlor, Bennett & Nathans, L.L.P., Greenbelt, Maryland, for Appellee.

Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.

Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge HOWARD joined. Judge DIANA GRIBBON MOTZ wrote a dissenting opinion.

OPINION

WILKINSON, Chief Judge.

Lisa Joyce Rubin, a Maryland prisoner, claims she was denied the effective assistance of counsel and seeks federal habeas corpus relief. The district court granted a writ of habeas corpus, concluding that the state court's decision not to grant Rubin a new trial was an objectively unreasonable application of clearly established federal law regarding Rubin's right to conflict-free representation. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Because two of Rubin's attorneys labored under a conflict of interest that adversely affected Rubin's representation, and because Rubin was denied the assistance of counsel by these lawyers' corruption of the attorney-client relationship from the night of Rubin's crime until the conclusion of Rubin's trial, we affirm the judgment of the district court.

The case involved two attorneys who in the aftermath of a crime schooled their client in the tactics of evasion in order to guarantee their own fee. Then to avoid criminal indictment and keep their conduct from coming to light, the attorneys took cover as part of the defense team. While the prosecution harped at trial on Rubin's actions immediately following the crime, the attorneys could not be called as fact witnesses and their role in directing Rubin's actions was never explained. To say this had an adverse impact on her trial is self-evident. To say the actions here tarnished the noble calling of criminal defense work is an understatement.

I.

On November 11, 1990, Lisa Joyce Rubin was convicted of first degree murder and the use of a handgun in a crime of violence. She was sentenced to life in prison, with all but 30 years suspended, on the murder charge and a concurrent sentence of 20 years on the handgun charge. There is no question that Rubin shot and killed her husband, Timothy Warner. However, Rubin, the only defense witness called at trial, claimed she was acting in self-defense.

A series of events ultimately led to the homicide. During her marriage to Warner, Rubin had an affair with William Glisson. Rubin and Warner ended up bringing a civil suit against Glisson because Glisson assaulted Rubin during the affair. In the course of the civil trial, Glisson was poisoned when he drank out of a soda bottle containing cyanide.

After the civil proceeding against Glisson, Rubin and Warner separated. Rubin subsequently hired private investigators, Robert Miller and Robert Leopold, to determine whether Warner was having an affair. In April 1990, Rubin told Miller that Warner confessed to her that he had poisoned Glisson. Rubin claimed she was afraid of Warner and wanted to tell the police what she knew about the attempt on Glisson's life. Miller referred Rubin to Darrel Longest, an attorney, so that Longest could arrange for Rubin to meet with the police. On April 20, 1990, after Longest secured immunity for Rubin, Rubin and Longest met with a police officer to tell him about Warner's confession.

Four days later, on April 24, 1990, Rubin met Warner at a veterinary clinic to have their dog put to sleep. During a walk with Warner in the woods behind the clinic, Rubin told Warner that she had gone to the authorities about his confession. According to Rubin, Warner was enraged and pulled out what she believed to be a gun. Rubin then took a handgun out of her purse and shot Warner eight times.

After the shooting, Rubin proceeded back into the veterinary clinic and called Miller in an attempt to reach her attorney Longest. Following Miller's instructions, Rubin met him and the other private investigator, Leopold, at a neutral location. The three of them then returned to the scene of the crime. Miller called Longest and his law partner, David Gavin, who both came to the crime scene. At that time, it became clear that Rubin had taken a lot of medication. So Longest told Miller and Leopold to take her to the hospital for a possible drug overdose. However, Longest went one step further. In an apparent effort to have Rubin evade detection, Longest instructed Miller and Leopold to have Rubin admitted to the hospital under a false name. The attorney's instructions were meticulously executed.

While Rubin was in the hospital, Longest notified the police that Warner was dead. However, he never disclosed Rubin's identity or whereabouts. With Rubin still at large, Longest and Gavin were able to direct her actions in order to ensure themselves ample compensation. The day after the shooting, attorney Gavin drove Rubin to the bank so she could withdraw the sum of $105,000 to cover Longest and Gavin's retainer fee and expenses. Meanwhile, attorney Longest took possession of the evidence in the case. Longest took Rubin's jacket, her purse, some .22 caliber bullets, and a .38 caliber handgun and kept them at his law offices. Finally—only after the attorneys discovered that a warrant was out for Rubin's arrest—Longest and Gavin turned Rubin in to the police at 7:00 p.m. on April 25th.

Longest and Gavin continued to advise Rubin after the homicide. They recommended to Rubin who should serve as her trial counsel. They persuaded her to hire Barry Helfand, who in turn brought in Alan Goldstein and Fred Joseph. And remarkably, considering the post-shooting events, Longest and Gavin remained part of the defense team even after Helfand, Goldstein, and Joseph were brought into the case. Longest and Gavin continued to collect a fee from Rubin, even though they did not sit at counsel table during her trial.

Except for the fact that Rubin went to the hospital, none of the facts regarding the events following the homicide were brought out during Rubin's direct examination. And Longest and Gavin were not called to testify about their roles in directing Rubin's actions in the immediate aftermath of the shooting. However, the State brought out the events from the twenty-four hours following the homicide during Rubin's cross-examination, without any mention of Longest and Gavin's activities. The State used the facts to refute Rubin's self-defense claim by arguing that she had fled the scene of the crime, lied about her identity, and showed consciousness of guilt.

Following her conviction, the Maryland Court of Appeals granted certiorari and affirmed Rubin's conviction. See Rubin v. State, 325 Md. 552, 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 granted Rubin's petition for a new trial, finding a conflict of interest between Rubin and defense attorneys Longest and Gavin that violated Rubin's Sixth Amendment right to counsel.

On appeal by the State of Maryland, the Court of Special Appeals reversed in an unreported decision. The Court of Special Appeals did not dispute the post-conviction court's factual findings regarding Longest and Gavin's actions after the homicide. And the court found that Longest and Gavin "served as counsel on behalf of Mrs. Rubin" up to and throughout her trial. However, the state court found that after the events following the homicide, Longest and Gavin's contribution to the defense team "consisted of what is most accurately described as `paralegal/investigative' work... and `client relations' that had nothing to do with trial strategy." Therefore, the Court of Special Appeals held that because Longest and Gavin did not control the decision of whether to offer their testimony at trial, and because it was a reasonable decision by Rubin's trial counsel not to call them, Longest and Gavin's "failure or refusal" to testify did not constitute ineffective assistance of counsel. The Maryland Court of Appeals denied Rubin's application for certiorari. See Rubin v. State, 351 Md. 663, 719 A.2d 1262 (1998).

Having exhausted her state remedies, Rubin filed a petition for habeas corpus relief in the district court. On February 7, 2001, the district court granted Rubin's petition, finding that the Maryland Court of Special Appeals unreasonably applied the clearly established Supreme Court precedent of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). The district court held that it was objectively unreasonable for the state court to conclude that Rubin was not denied the effective assistance of counsel by Longest and Gavin's conflict of interest during the pretrial and trial phases of Rubin's case. See Rubin v. Gee, 128 F.Supp.2d 848, 865-69 (D.Md.2001). The court stressed that it was unreasonable for the state court to conclude that "counsel as deeply conflicted as Longest and Gavin were could remain active in [her] case." Rubin, 128 F.Supp.2d at 869.

Alternatively, the district court concluded that the state court's finding that Longest and Gavin played only a "paralegal/investigative role" on Rubin's defense team was an unreasonable determination of the facts in light of the...