Robert G. Rubin – Criminal Defense Notable Cases:
Summaries of charges, defenses, and outcomes for clients prosecuted in counties throughout Georgia and the Southeast.
Charges Dismissed Before Warrant Issued
State v. John Doe (2019)
Charges: Sexual Assault
Mr. Doe was a nurse technician at a hospital. His duties included sitting with patients who are deemed a danger to themselves. During one of his shifts, a male patient who was admitted to the hospital after overdosing on drugs accused the nurse tech of performing oral sex on him over his bed sheet. Local police were called to the scene, interviewed the patient and seized the bed sheet for testing.
Defense and Outcome:
Defense counsel immediately obtained a promise from law enforcement not to effectuate an arrest until meeting with counsel. In the interim, counsel obtained evidence to present to law enforcement: counsel interviewed all of the hospital personnel on duty the night of the incident. No one saw the nurse tech do anything inappropriate to the patient, but several nurses thought Mr. Doe acted strangely in the morning shortly before the patient’s accusation. Counsel conducted an intense investigation into the background of the patient and found that the patient was a habitual criminal and drug addict. His background substantially damaged his credibility and reliability. Counsel also had Mr. Doe take a polygraph, which he passed, and had Mr. Doe provide counsel with in depth information about his good work at the current hospital and at his other jobs Over the course of the next year, counsel provided the results of the investigation to law enforcement. Eventually, the GBI crime lab examined the sheets and did not find any of Mr. Doe’s DNA. After discussion with counsel, law enforcement closed the investigation without an arrest.
State v. John Doe (2017)
Charges: Sexual Battery on a Patient
A patient of a colorectal surgeon filed a complaint with the police and the Georgia Medical Board that the Defendant touched her genitals in a manner not connected with her examination and outside the course of standard practice.
Defense and Outcome:
The Defendant, a colorectal surgeon and employee of a large hospital was accused of committing a sexual assault against a patient during the course of an examination. The patient making the allegation did not file the complaint with the police until 18 months after the alleged incident took place.
The detective handling the case asked the Defendant to come to police headquarters for an interview/interrogation. The Defendant hired us and we met with the detective without bringing the Defendant to the meeting. We would not let the detective interview the Defendant. Instead, we got the detective to agree to hold off on making any decision on the allegation until we could complete our own investigation.
Our investigation proved very illuminating. The medical records from her original surgeon showed that the patient lied to the doctor and sought strong painkillers after her colorectal surgery. The records also showed that the patient was convinced her medical condition was not healing properly when, in fact, she was healing as expected. She doctor-shopped trying to find a doctor who would agree that her condition was not healing, which led her to the Defendant. The Defendant conducted several examinations and also concluded that she was healing normally.
Our interviews of the Defendant’s staff confirmed that the Defendant always treated his patients appropriately, with kindness, and that there were never complaints from female patients about the Defendant’s care. Importantly, we were able to show the detective that the Defendant always had a staff member present whenever he examined a female patient and would have had a staff member present when he examined the complaining patient. We were also able to show the detective that the Defendant passed a polygraph on the allegation.
After listening to our presentation and reviewing our employee interviews, photographs and medical records, the detective and the prosecutor agreed to dismiss the case without seeking a warrant.
State v. John Doe (2015)
Defendant was under investigation for raping a 31-year-old woman. The woman told police that she and Defendant were “just friends,” but that he wanted to be “more than friends.” The woman alleged that, after Defendant lured her to his apartment, Defendant pushed and held her down while he raped her vaginally and anally. The woman reported that she was bleeding between her legs during the incident; and police observed and photographed bruises on her arms, thighs, hips, buttocks, and back.
Defense and Outcome:
Defendant had consensual sex with the woman on the night in question. Defense counsel had him take a polygraph exam, which showed he was being truthful, and a psychosexual evaluation, which showed he had no psychological issues associated with committing rape. Through Defendant’s testimony and personal records, defense counsel showed that Defendant and the woman were more than friends, having an ongoing relationship involving dates, overnight trips, and consensual sex. Extensive interviews of witnesses who knew the woman revealed that her conduct and behavior after the alleged incident was inconsistent with being a victim. Witnesses also reported that the woman had a history of peculiar behavior and that they were not surprised she could invent a story of sexual abuse: she often had bruises; she claimed to be “saving herself for marriage,” but acted out sexually in strange ways; she was conflicted about her religious beliefs and her sexuality; she still lived at home with her “very religious” mother, who would have disapproved of pre-marital sex; she often told tall tales, liked being at the center of drama, often played the victim; and she may have made prior false allegations of rape and child molestation. Finally, by visiting Defendant’s apartment, defense counsel observed that a brutal rape could not have occurred there without being heard by the neighbors, and that there were no blood stains or other signs of trauma consistent with the allegations. Defense counsel presented this evidence to police, who subsequently agreed to close its investigation without obtaining an arrest warrant.
Charges Dismissed After Indictment Issued
State v. John Doe (2019)
Charges: Sexual Battery, Simple Battery
Defendant, a long-time physician who did pre-employment exams, for Hall County, conducted an exam on a female patient in December 2017. The employee complained that Defendant touched her inappropriately when he palpated her femoral artery. The GBI was alerted to the complaint and initiated an investigation.
The Hall County DHR office alerted employees of the complaint so that others could come forward if they felt they had been treated inappropriately too. Despite Defendant conducting hundreds of pre-employment exams and thousands of other types of medical procedures, only eight women came forward. The complaints were either that Defendant touched the patients’ femoral artery or moved breast tissue with his stethoscope hand while listening to the patients’ heart valves. Some of the alleged conduct even occurred over clothing, yet was deemed troubling to the investigating GBI agent. Defendant adamantly contended that all of the alleged conduct was normal medical procedure and done to all patients, both male and female.
Defense and Outcome:
Defense counsel immediately reached out to the GBI agent who refused to discuss the investigation in any meaningful way. So defense counsel conducted his own investigation. Counsel and his investigator met with the staff of the Hall County clinic, all of whom were female, in order to get their impressions. To a person, the staff reported nothing but outstanding medical and personal behavior by Defendant. None of the staff were aware of any complaints of inappropriate touching by Defendant, none of the staff witnessed any misdeeds, and all of the staff reported that Defendant always treated them with respect and warmth.
The investigation also revealed that the medical practice where Defendant had been employed for a long time had not received any complaints about Defendant and were very supportive of him and his practice. In short, other than the complaining patients, Defendant was revered in the medical community by his peers, staff, and patients.
Defense counsel attempted to stop the case from being indicted by meeting with the prosecutor and showing her the results of his investigation thus far. The prosecution was dismissive of defense attempts to close the case and proceeded to charge Defendant in a seven-count indictment.
It was apparent that the case was going to trial, but more investigation needed to be done.
Defense counsel retained two experts to review the complaints, and render an opinion as to whether Defendant had acted inappropriately as alleged. Both experts, one a physician, the other a professor of nursing, agreed that palpating the femoral artery as described in the witness statements was a normal medical procedure. They also agreed that it is appropriate for a physician to move breast tissue when listening to a patient’s heart, if the tissue interferes with the exam. One expert provided his medical school textbook to corroborate his opinion.
Defense counsel filed motions challenging the indictment, seeking to keep out uncharged conduct, and seeking admission of the results of a polygraph that Defendant passed. The Court denied the defense motion challenging the indictment, but agreed to keep out the testimony of one patient and agreed to allow the defense to admit the polygraph exam if Defendant testified. It is highly unusual for a judge to admit a polygraph exam over the prosecution objection so this was an important win in the preparation of the case.
The case was set for trial in January 2020. Two months prior to trial, defense counsel met with the prosecution in an attempt to convince the prosecutor to dismiss the case, again showing the prosecutor the results of his investigation and this time explaining what his expert witnesses would say. Fortunately, this time the prosecutor was interested in what defense counsel had to say, but refused to dismiss the charges.
One month before trial, defense counsel asked the prosecutor if he would dismiss the charges if Defendant retired from practicing (which was planned all along) and apologize for making the complaining witnesses uncomfortable (but not admitting misconduct). The prosecutor finally agreed and the case was dismissed just prior to trial.
As a result of the case being dismissed, Defendant can retire in peace, with his medical license unblemished, and his reputation intact.
Charges Reduced After Indictment/Accusation
State v. John Doe (2018)
Defendant was arrested for Rape while visiting friends at an out-of-state college. After a fraternity party, the alleged victim invited Defendant up to her dorm room, where the couple began making out. The alleged victim repeatedly told Defendant, “I am not going to have sex with you.” However, they continued making out and eventually had intercourse. Afterwards, the alleged victim called her friends for help. She showed them bruises on her neck, ears, and lips, and explained that Defendant had bitten her and sucked on her skin as he aggressively had sex with her. The friends called campus police and reported that the alleged victim had been raped. After a physical exam, the medical examiner concluded that the biting and sucking injuries, as well as injuries inside and outside the alleged victim’s vagina, were consistent with forceful, nonconsensual sex. Police located and questioned Defendant, who admitted to having sexual intercourse with the alleged victim, and admitted to drinking alcohol and taking LSD earlier that day. Defendant was arrested and charged with Rape. He faced up to 10 years in prison and a lifetime on the Sex Offender Registry.
Defense and Outcome:
Defense counsel immediately reached out to the prosecutor to obtain discovery and ask for her commitment not to seek an indictment without first allowing Defense counsel to investigate the case and present their findings to her.
In the State’s discovery, Defense counsel found extensive video surveillance footage showing Defendant and the alleged victim together around campus. They were affectionate with each other, but not at all “creepy” or “groping” or “stalking” towards each other. It did not appear that either of them was intoxicated.
The discovery also contained Defendant’s statement to police and several statements by the alleged victim. Ironically, Defendant and the alleged victim described the facts almost identically. Defendant acknowledged that the alleged victim repeatedly told him, “I am not going to have sex with you.” However, both acknowledged that they continued doing “other things,” including performing and receiving oral sex on and from each other, and that they eventually had sex. The alleged victim admitted that she never said “stop,” “no,” “don’t.” She denied being intoxicated and denied that Defendant seemed intoxicated. She did not claim that Defendant threatened her or used force to restrain her. She said she wanted it to stop, but felt like she couldn’t make it stop. Defendant admitted to being persistent with her, but denied forcing himself on her or coercing her in any any way. After sex, they showered together, exchanged phone numbers, and talked about seeing each other later that night. As soon as Defendant left, the alleged victim called her fiends for help.
In reviewing police interviews with several of the alleged victim’s friends, Defense counsel learned that the alleged victim never reported this as a rape. The friends confirmed that she told them she was uncomfortable about what happened, that “one thing led to another,” that she was confused, not sure how to explain what happened. She said she felt like it was her fault, because she had not told Defendant to stop. However, the alleged victim’s friends immediately “knew” she had been raped – they tried to convince her of that, and called her parents and campus police. Police also immediately “knew” a rape had occurred, and proceeded to treat the case that way.
After studying the discovery, Defense counsel and their investigators took Defendant back to the campus to observe and photograph all the relevant locations, learning additional, critical details about the way the two interacted during and after sex, which further indicated a consensual encounter.
Defense counsel then put everything in the hands of experts to try to obtain additional support for Defendant’s innocence. First, Defendant took a polygraph exam (which he passed) and a psychosexual evaluation (which showed he was not a predator, not violent towards women, not considered a risk to commit sexual offenses). To address the presence of alcohol and drugs in the case, Defense counsel consulted an expert Pharmacologist, who reviewed all the video surveillance, witness statements, and other case materials, concluding that everything was consistent with Defendant and the alleged victim being completely sober when they had sex. A Sexual Assault Nurse Examiner (“SANE”) and a Forensic Pathologist reviewed the sexual assault exam, and both agree that the injuries were consistent with consensual sex – not with forceful sex, as the State contended. Within days of the incident, Defense counsel had Defendant examined and photographed by a Forensic Pathologist, who found no evidence of injuries to him, suggesting there was no struggle of any kind. Finally, to understand how the alleged victim could have come to believe she was raped when in fact she wasn’t, Defense counsel turned to an expert in improper influence and interviewing techniques. The expert explained that, although adults are not normally as suggestable as children, adults certainly can be influenced to believe or endorse inaccurate, false versions of events. In her opinion, that’s what happened in this case: the alleged victim never reported this episode as a rape, but was led to believe or endorse it as such by friends, family, and police who jumped to conclusions and insisted she was a victim.
Defense Counsel presented its case to the prosecutor prior to indictment. Subsequently, the prosecutor dismissed the felony Rape charge and indicted the case for a non-sexual, non-violent misdemeanor offense. Defendant pleaded to the lesser charge under the Youthful Offender Act and was sentenced to 12 months probation. He is not required to register as a sex offender; and five years after he completes his sentence, his record will be expunged completely.
Jury Trials - Not Guilty Verdicts
State v. John Doe (2016)
The defendant entered the room of his step-daughter and raped her over the course of two hours. The GBI forensic experts confirmed the presence of seminal fluid on the victim's underwear and the defendant's DNA.
Defense and Outcome:
The victim had a history of lying and falsely accusing others of abuse towards her. Other than the GBI's testimony, there was no other physical evidence that supported the allegations. At trial, defense counsel was able to demonstrate through cross-examination of the GBI and presentation of its own experts that the substance on the alleged victim's underwear was equally consistent with female urine or vaginal secretions. Additionally, no sperm cells were seen by the GBI when they microscopically examined the underwear. The defendant's DNA could have been deposited on the underwear through "touch" when he prepared, but did not actually do, the laundry the same morning of the allegations.