Praising a Judge that Does it Right: David Rippel

Making the World a Better Place

Judge David Rippel

Collin County Court at Law no. 4

As a people’s attorney (defense lawyer standing up for the citizen against the government in the defense of one’s constitutional rights) for 20 years, the wisdom I have gained in what makes the world a better place is truly invaluable. Here are a few nuggets and observations.

A court focused on their statistics (how many trials they have a year, how old their oldest cases are, the number of dispositions), is not one that is attentive to the needs of the citizen accused or society as a whole. You can’t force justice. Most of the time, it is like baking a cake. For all the parts to come together perfectly- it takes time. Courts that harangue defense lawyers by not allowing them some say in scheduling, do this to everyone’s (including theirs) detriment. This is a court concerned about bragging rights to their fellow colleagues. The fact is- hardly anyone knows the judges they are voting for, much less their court statistics. I applaud Dallas County courts for being efficient by not requiring citizens accused to show up to every court date when a lawyer can do it. Many Tarrant County courts (particularly felony courts) are not respectful of the citizen accused’s rights or time when they require a mandatory appearance for every court date which could be handled by the attorney. Judges and court staff need to remember rule number one: don’t treat someone like a criminal before they are convicted.  

The number one thing I observe wrong with the jury system is jurors not actually following the law. Jurors need to stop disassociating themselves from the case. The whole point of the jury system is to keep it real for the citizens. When jurors ignore reasonable doubt, issue guilty verdicts because they think they are suppose to, they render  the system meaningless. A trial is not a rubber stamp process, it is a due process evidential hearing. Follow the law, reasonable doubt means NOT GUILTY. Listen and respect the evidence and law as if your own child were on trial. I walk away from many a guilty verdict knowing that the jury would not convict based on the law and the same evidence had it been their loved one on trial. Unfortunately the last 20 years has been quite the age of hypocrisy. Most trials have serious factual dispute issues. We would not have jury trials if the police were always right, prosecutors always honest and reasonable, and judges beyond reproach. Not to mention, most cases are resolved by plea bargain so a trial is the first indicator of  serious issues at play that merit serious attention. When jurors don’t follow the law, they should know their verdict isn’t fooling anyone. They should not hope too hard if they should ever become accused, as repercussions breed a societal mentality. The general consensus of the last 20 years has been “tough on crime.”  It has bred the overcrowded jails, millions of broken homes, and billions in federal poverty subsidies. When a justice system is concerned chiefly with “the stick” approach (retributive “eye for an eye” mentality), solutions and improvements lag behind retarding society from progress. Love, compassion, mercy and understanding is a far more effective answer and approach in reducing crime, and the  civilized one.

Today I handled a few pleas in Collin County’s Court at Law no. 4. My repeated pleasant experiences with Judge David Rippel merits mention. The judge reminds me of what works in bettering society. Some may call his sentences given to my clients slaps on the wrist, but this is misdemeanor court where for many (a wise judge once told me), people self correct. Not only did he treat me along with  all the other defense lawyers with the utmost respect (defense lawyers are too often treated like redheaded stepchildren receiving the brunt of a court’s venom and frustration), he treated my  client with dignity, compassion and humanity. He even reached out to my client and asked caring questions (no, he did not preach or get on a soapbox about drinking).  His judgments were the kind that produce good effects.  Much akin to child rearing, the greater the love and positivity- the better the results. Inevitably, I have seen strict parents have the worst results. Life is about trust, respect, and encouragement. Who doesn’t make a mistake? The secret for those in power is not pleasuring in the negative (very indicative of low self esteem) or control, but gaining one’s happiness by encouraging and helping others. The justice system works when those caught in it want to turn it around for good by being good themselves. You just don’t do that when you fail to recognize basic humanity in the process. I would love to see  all the courts more full of positive, forgiving, hopeful and compassionate people (judges, their staff , law enforcement and prosecution). It’s time to trend positive and reject what has clearly not worked in this new age of record number prisons. We have ailed as a society when cops feel like they have to arrest every violator they see. There was a time when a cop would warn a DWI to call a ride and not do that again and they wouldn’t. We live in an age where people parked in parking lots intoxicated (because they don’t want to endanger others by driving) are arrested and convicted.  

Judge David Rippel, you change the world for the better. You focus on hope and the positive. You are a beacon and with heroes like you, others will follow. One day, cops will feel free again to let people who made mistakes call for a ride and they will be thanking people who pull over in parking lots to do the right thing. Good always wins over evil and society will be better for it.

An Open Letter

To all my past, present and future clients, and for anyone who is curious:

If you ever wanted a nutshell version of "DWI at Night, Coffey in the Morning" here you are straight from the source. I have practiced law for 19 years. This defines who I am. At the age of 12, my father encouraged me to be a lawyer after helping me write and practice a Student Council Treasurer campaign speech (I ended the speech, "Vote Me Me for You You" and won, so it's true I come by my marketing quite honestly).

In my wildest dreams, I never could have fathomed how much injustice there was in the world of criminal law, particularly DWI. As a new lawyer, I heard about the National College of DUI Defense or NCDD (celebrating its 20th anniversary this year) training held at Harvard every July. I went to it and my world was lit on fire.

It was shocking to find out how inaccurate breath testing was; how the National Highway Safety Administration skewed statistics and conducted experiments that don't meet scientific parameters in developing the standardized field sobriety tests which every year falsely convicts so many people. Also, how forensics did not include the reporting of uncertainty (just now coming to light but still not mandated for breath testing) among other glaring red flags despite people's liberties and lives at stake.

I delved into research, publishing, speaking, and became board certified all in an attempt to learn and help as many people as I could, including lawyers. The NCDD asked me 3 years ago to become Regent. This is an unpaid, serious 13 year commitment that involves a mandatory 4 seminars every year. On top of this, there are mandatory Board meetings, workshops, and other pressing time commitments. I accepted this position without flinching. I have sacrificed many family vacations (being a busy trial lawyer these commitments take up the majority of my free time I have every year), time away from my family, and important events and dates in my personal life to carry out this commitment for a full 13 year term. When I accepted, my oldest was going off to college and my youngest was in the 5th grade. Sure, it is painful missing college events and sacrificing family vacations as they age in critical years, but it is an honor to be able to effect change for the betterment of humanity. It allows me to help others positively (outside my own clients) across the country.

Since becoming a Regent, I started a forensics committee. We have plans to send a metrology expert on mathematical uncertainty to the National Forensic Commission committee hearings so that the public interest can be represented. I hope one day to see breath testing reported in uncertainty units. I am proud of all the work I am able to accomplish with and through the NCDD for the greater good of our country when it comes to fairness. We not only put on excellent educational seminars for lawyers, but we hold numerous training sessions for public defenders across the country at no cost to them. This is an important necessity as most public defenders offices have deficient budgets. I have taken it upon myself to show appreciation and inspire my fellow defense lawyer colleagues by showcasing special and accomplished members with a "Member in the Spotlight" segment sent out to all 1500+ of our membership, as well as to educate the public on what leaders DWI defense lawyers are in their communities. In addition, I take great pride in educating our members and the public on justice related issues through my blogs (both NCDD and otherwise) and social media. This influences prosecutors, judges, jurors, and voters all for the betterment of humanity as we seek justice for all.

This defines me. Not just my words, not my marketing, not my certifications or education, but what I do. Just as our fellow Americans sacrificed family and their personal lives to fight for the founding of our country and serve in important positions as Founding Fathers. I view it as an honor to give and sacrifice with my talents to keep their vision of fairness and constitutional protections alive. Whatever contributions I can give, I view it as my duty to do so and practice doing so. My four children and family understand. How can I expect them to give their best and make the world a better place if I don't sacrifice? So sacrifice I do! It is a very good word to describe me.

So the next time, you drive by my billboard or hear some crazy rumor that is normally a product of someones jealousies or inadequacies, just look at my work. I was chosen a Regent because the leadership of NCDD and its Founders saw the truth, I work hard, and sacrifice to do the right things. You can't get to my position unless you have earned it the good old fashioned way. You can't stay at my level unless you are made of the right stuff. You can't effect change unless you are a leader. Thank you NCDD for choosing me to lead and lead I shall.

Lying Expert Witnesses: The Shabby State of Criminal Justice in Our Country

The American Criminal Justice System: “Houston, We have a Problem.”

James Ferguson

Mark Fuhrman, convicted of a felony perjury after the O.J. Simpson trial, is now a national Fox legal analyst, an “expert witness” on police matters. Last week, the 6th Circuit Court of Appeals in Cincinnati, Ohio, ruled “Dr.” James Ferguson, a state toxicologist, convicted of perjury, could NOT be sued or found liable for lying in a murder case where his expert witness testimony was relied upon by the judge for the conviction. Fred Zain, toxicologist at the West Virginia Department of Public Safety, falsified lab results which resulted in as many as 134 wrongful convictions. Once under investigation, he merely picked up and moved to San Antonio, Texas to work as a toxicologist where an investigation found at least 180 cases in which fraud may have led to wrongful convictions. He died in the comforts of his Florida home in 2002. Picking up the pieces in Boston, Massachusetts, over 34,000 lab results are now in question after state toxicologist Annie Dookhan pled guilty to crimes related to falsifying results. These cases are just the recent ones. They are only the tip of the iceberg. If an athlete is caught cheating in the Olympics, he or she is stripped of their medal and the opportunity to compete. In the criminal courts of America, if a police officer or expert witness is lying to obtain a conviction, they get promoted and receive raises. If their lies are caught, the Courts protect them. The 6th Circuit Court rationalized, “Dr. Ferguson deserves absolute immunity in the case because all testimony, even if perjured, is protected to ensure witnesses will be candid without fearing lawsuit.”

Mind you, this absolute immunity protection ONLY applies to government witnesses. It‘s the same type of logic as preventing poisoned customers from suing a chef because this would stifle the chef’s creativity in the kitchen. How many chefs would poison patrons? An illegal and unlikely scenario as restaurants would shut down and there would be health code compliance complaints. These safeguards do not play out in the criminal justice system. Quite the opposite: convictions win elections, including in the appellate arena, and look great in the media while those successful earn job promotions. 

As for a forensic regulatory body, NONE with any regulatory powers over the criminal justice system exist, although the first National Commission on Forensic Science has just been created. What is currently in place is a scandal ridden “pay as you go” certifying agency environment where groups like the American Crime Lab Directors (under major fire and litigation) can issue board certifications and certificates for a fee despite not adhering to scientific peer review recommendations; e.g. blind audits, true proficiency tests.

Annie Dookhan

How does this happen? It starts with deception and a lack of qualifications with no one caring enough to check. “Dr.” James Ferguson, did not have a doctor’s degree, nor a master’s degree and it is questionable that he even posses an undergraduate biochemistry degree (the University records showing how he was able to finagle this degree are “missing.”). According to an Ohio State University Biochemistry professor since 1965, Mr. Ferguson is missing six of the 15 required courses in his major. He failed chemistry courses seven times. His grades are poor. The same deception unveils with Fred Zain. Mr. Zain claimed to have graduated from West Virginia State College (now West Virginia State University) with a major in biology and a minor in chemistry. Records show he never minored in chemistry. He had only taken a few courses in chemistry, all of which he either flunked or barely passed. He also failed an FBI course in forensic science including the basics of serology (blood testing) and bloodstains. Annie Dookhan also feigned credentials. She claimed she had a master’s degree in chemistry from the University of Massachusetts at Boston. School officials have confirmed she has no such degree, nor has she ever taken any master’s courses there.  Amazing how one can’t even qualify to get into a nice apartment complex without a background check, yet the government can lock you in prison based on fraudulent toxicology reports by fake experts. The “fact checking” only seems to work one way. Before even negotiating a plea bargain, a district attorney always runs the criminal history of a defendant. Most district attorneys’ offices employ multiple investigators to locate witnesses, verify witness accounts and check backgrounds.  Wouldn't it be most prudent to spend a mere pittance on ordering academic transcripts from “expert witnesses” and running background checks before we set them loose on lab tests ? As far as tax payer dollars are concerned, it costs roughly $45k a year to house an inmate. The taxpayers don’t get that money back once it has been spent housing a wrongfully convicted person. In Fred Zain’s case, West Virginia alone shelled out a combined total of $6.5 million to the wrongfully convicted- all while the guilty, prevaricating witness is lucky to even be prosecuted.

Fred Zain

Let’s face it, nobody wants to hear of a lying government expert witness who has managed to defy all the common sense odds and get away with convicting innocent people with the seeming approval of all the cogs in the justice system from the prosecutor to the judge.  So, the only way to calm the ruckus down is to distract and “whitewash” the problem. In James Ferguson’s case, the media reported he had merely misreported his graduation year of 1988 for 1972. Sounds harmless enough, right? Except, this fails to account for the fundamental problems lurking under the surface. The fact that it took Mr. Ferguson twenty five years to obtain his degree also explains why he could not produce the gc-mass spectometry chromatograms (if in fact he even knows how to run a gas chromatograph) in Benjamin Uselton’s case alleging intoxicating dosages of alprazolam, where the coroner, a phD, had already reported the absence of such findings in the original autopsy. Mr. Ferguson’s unconventional scientific methods were also key in Virginia LeFever’s murder conviction where he asserted the deceased had lethal dosages of strychnine in his rectum, despite reports to the contrary by medical personnel who treated the deceased when he was brought into the hospital for an antidepressant overdose. While a special panel of lawyers, scientists and West Virginia Senior Circuit Judge James Holliday were investigating Fred Zain’s misconduct, he managed to hoodwink Bexar County, Texas into letting him take over their toxicology. The untimely for Texas, West Virginia report when finally issued, concluded his misconduct was so egregious, any testimony he offered “should be presumed as prima facie invalid, unreliable and inadmissible.” In Annie Dookhan’s case, she was too busy churning out guilty convictions for her satisfied prosecutors for her supervisors to acknowledge that her 500 lab analysis per month (five times the national average) was a glaring red flag. They also conveniently glossed over the fact no one had ever seen her work a microscope and that she had a bad habit of misidentifying samples.  It seems she subscribed to, “A little inaccuracy sometimes saves tons of explanations." (Saki)

As incredulous as these sordid tales are, the aftermath is even uglier. They will continue to happen unless decisive measures are taken. It took drug testing in the major league sports to prevent cheating. The “honor” system was just not working, ask Alex Rodriguez. The Tour de France can reclaim the seven Tour de France medals Lance Armstrong won while taking performance enhancement drugs, but a lying “expert witness” cannot restore the years lost to prison of someone framed by an uncaring and negligent justice system that turns a blind eye. Bo Bennett said it best, “For every good reason there is to lie, there is a better reason to tell the truth.” That reason should be the fear of repercussions. If a person can have their probation revoked for something as simple as missing a report period or failing to take required classes, we should require our government “experts” to prove their worth and work.  It’s one thing for a charlatan preacher or carnival barker to line their pockets disingenuously, a whole other to allow unqualified and unethical government “experts” to play God with people’s lives based on shams.

Here is a simple and common sense roadmap that doesn’t take a college genius to figure out. We must start off with safeguarding the integrity of our country’s most precious institution, the justice system.  First, we must separate police work and its prosecution from toxicology. The only bodies that scientists should be reporting to are other scientific bodies (legitimate, of the academic and scientific peer review variety). Currently much police miscegenation occurs, right down to the divvying and mixing up of funds and paychecks. Forensic results should be reported to the government, not controlled by the police or prosecution (as the Virginia LeFever murder conviction demonstrates where the prosecutor told James Ferguson what they were looking for despite the coroner’s findings). Second, although ethics is the new corporate “it” word, it seems to be staggering behind in the world of the police state.  We must make it an essential minimum and reality in the HR of government personnel hiring. Proper screening of candidates and reference checking should be mandatory and commonplace. Our government experts should not only demonstrate the highest academic credentials, but they must also possess character beyond reproach; for their opinions don’t favor the highest bidder of a government contract or the buying power of widgets, but directly affects the value and experience of human life, a far more precious commodity and one that our Constitution was designed to protect. The type of character of one to whom so much power is given must be circumscribed with honesty, meticulousness, and trustworthiness.  Third, we must not “trust” that local governments can ferret out frauds. There needs to be uniform national and consistent standards, protocols, and mandatory  continued  professional education akin to what lawyers, accountants, doctors, nurses,  architects and engineers are required to take to take to keep up with developments in the field. All experts should be subjected to national certifications testing their proficiency before they can practice, akin to passing the FBI forensics courses to prove they possess the minimal aptitude and skills with which to handle and report laboratory evidence before doing so.  Hopefully, the time has come where enough shame and disgust can propel us forward to reclaim what in theory should be the world’s best justice system, but is currently a far cry.

                                                                                              

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