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Jerome Rubin

Other Arson Cases
At about 8:30 a.m. on April 16, 2007, firefighters were called to extinguish a blaze at Only Flooring, a carpet and flooring business in Framingham, Massachusetts. Although there was substantial smoke and water damage, the actual fire—which was later described as a “smoldering fire”—was confined to a small area in the basement.

The owner, 48-year-old Jerome Rubin, reported that he had been in the building at about 6 a.m. to empty buckets of water that had accumulated due to leaks in the roof. He said he left after about 15 minutes and stopped at a drug store to buy toilet paper—which was confirmed by a security video.

The fire was quickly extinguished with less than two dozen gallons of water used to snuff it out.

Framingham fire marshal Brian Mauro arrived and requested that the State Fire Marshal’s office be notified. Sgt. Michael Cook came to the scene and conducted an investigation, after which he claimed that the only possible conclusion was that the fire had been set with an “open flame.”

Two days later, an investigator for the company that had insured the building conducted his own analysis of the scene and said the cause of the fire was “undetermined.”

Rubin freely informed authorities that he was deeply in debt. He owed more than $500,000 on his home, had two mortgages on the business totaling about $4 million, and was on a payment plan with the Internal Revenue Service for $500,000 in back taxes.

The insurance company ultimately declined to pay any claim for damages. Meanwhile, within weeks, Rubin and family members had repaired the damage and reopened the store.

More than 18 months later, however, Rubin was indicted by a Middlesex County grand jury on charges of arson, insurance fraud and attempting to commit a crime.

He went to trial in Middlesex County Superior Court in October 2010. The primary testimony came from Cook, who said that he had eliminated “all the processes of any accidental causes” and therefore concluded that Rubin had set the fire. The prosecution’s theory was that Rubin set the fire in an attempt to collect on his insurance policy.

Rubin’s defense lawyer had retained an expert to analyze the fire, but the expert only focused on the findings of Cook and the insurance investigator. The expert did not conduct any independent investigation of the fire himself and was never called as a witness.

On October 28, 2010, the jury deliberated for three days and on three occasions indicated they were deadlocked (the first time the majority favored acquittal) before ultimately convicting Rubin of arson, fraud, and attempting to commit a crime. He was sentenced to two years in prison.

He was released on parole in October 2011.

The appeal of the case was assigned to the Committee for Public Counsel Services, the Massachusetts public defender agency. Rubin’s wife, Andrea, approached Angela Lehman, a private attorney who takes appellate cases from the CPCS by assignment, and asked Lehman if she would handle Rubin’s case. Lehman reviewed the case and persuaded the CPSC’s Innocence Program to take on the case.

The appeal was put on hold while Lehman conducted a re-investigation. In 2013, Lehman filed a motion for a new trial. The motion claimed that Rubin’s defense attorney had provided an inadequate legal defense by failing to call an arson expert as a witness for the defense.

Rubin’s lawyer had consulted an expert, but the expert did not attempt to investigate the cause or origin of the fire in the store and did not testify at the trial.

In addition to the motion, Lehman presented an affidavit from John Titus, a fire protection engineer in Massachusetts, who analyzed the testimony, documents and photographs that comprised the investigation by the prosecution’s fire investigator witnesses.

“I find no substantive or meaningful evidence that a fire of incendiary cause was set at the Framingham Only Flooring property by Jerome Rubin,” Titus declared. “Actual documented evidence of the time of the fire discovery, the extent of the fire damage, the location of fire origin and related issues do not support any reasonable fire reconstruction scenario consistent with incendiary cause.”

Titus concluded that Cook had “clearly ignored other possible fire ignition scenarios including accidental causes and possibly incendiary causation at a time much later than when Mr. Rubin was present.”

Titus said that Cook’s use of a “negative corpus” theory—that the absence of an accidental cause meant the fire was intentionally set—was “far out of conformance” with professional fire investigation standards. He said the investigation of the fire was “grossly incomplete and falls far short of a reasonable minimum standard for any satisfactory investigation and determination of fire causation.”

In September 2014, Superior Court Judge John T. Lu vacated Rubin’s convictions and granted the motion for a new trial. Lu found the fire expert that Rubin’s lawyer consulted “was only minimally…qualified to investigate fires…. If he had been a true cause and origin expert, he would have helped Mr. Rubin’s case.”

The judge pointed out that Rubin’s attorney attempted—solely through cross-examination—to persuade the jury that the conclusion of the insurance company’s investigator that the cause of the fire was undetermined was the correct conclusion instead of Cook’s finding that the fire was intentionally set with an open flame. “But he presented no evidence or witness testimony to support his chosen defense,” the judge said.

The judge noted that “where the (prosecution) had not presented any eyewitness testimony or direct evidence that Mr. Rubin started the fire, expert testimony that the type of physical evidence found on the scene indicated that the fire started well after Mr. Rubin left the building might have persuaded the jury that Mr. Rubin did not set the fire.”

On January 22, 2016, the prosecution dismissed the charges.

– Maurice Possley

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Posting Date: 5/31/2016
State:Massachusetts
County:Middlesex
Most Serious Crime:Arson
Additional Convictions:Attempt, Violent, Fraud
Reported Crime Date:2007
Convicted:2010
Exonerated:2016
Sentence:2 years
Race:Caucasian
Sex:Male
Age at the date of crime:48
Contributing Factors:False or Misleading Forensic Evidence, Inadequate Legal Defense
Did DNA evidence contribute to the exoneration?:No