The Court Report
By Richard Blassberg

Attorney Wayburn States His Position
New York County Family Court
Judge Sara P. Schechter Presiding

Editor’s Note: The Westchester Guardian newspaper presents the following position paper of Attorney Robert F. Wayburn, who presently represents the parents of Jing Kelly and who has and continues to represent and counsel Jing in her continuing effort to regain contact with, and custody, of her six-year-old son Tristram Kelly.

Tristram, who continues to be held in virtual false imprisonment, intentionally isolated from any contact with, or awareness of, his natural mother, and her parents, his maternal grandparents. This newspaper has repeatedly taken the position, and continues to hold the position, that Mrs. Gail Hiler’s taking of Tristram Kelly from Canadian authorities in Vancouver between January 3rd and 4th of 2003; arranged and facilitated by then-District Attorney Jeanine Pirro, was nothing short of a kidnapping, the result of which has been the total loss of all contact between mother and child for more than three years and nine months to date.

Black’s Law Dictionary defines kidnapping as “the unlawful taking and carrying away of a human being by force, or fraud, or threats or intimidation.” Specifically, Black’s Law Dictionary defines child-stealing as the conduct of “one who shall lead, take, entice or detain a child, under a specified age, with intent to keep, or conceal it, from its parent, guardian or other person having lawful care or control thereof.”

Clearly, Gail Hiler, who possessed no parole custody certificate or other lawful authority, to seize or detain Tristram Kelly, kidnapped him on January 3rd and 4th, 2003, aided and abetted by Jeanine Pirro.

Therefore, although our position with regard to the taking and detaining of Tristram Kelly may differ with regard to terminology, we respect and offer Attorney Wayburn’s position for our readers’ consideration.

I do want to commend your publication and you, personally, for the strong interest and support and coverage given to this matter. It is a great injustice that this mother was wrongly deprived of visitation and contact with her son for the past four years, and that to this very day, no headway has been made to correct that tragedy. I hope that your publication will continue to monitor this situation and voice support for justice in this matter and other matters as well.

While I believe Mrs. Pirro overstepped her bounds in assisting Gail Hiler on January 3, 2003 and January 4, 2003 to retrieve physical possession of Tristram in Vancouver, Canada, over that weekend, without benefit of any prior court review in either Canada or New York, and with a viewpoint of circumventing such court review, in that Ms. Kelly was scheduled to appear in the Canadian Court the following Monday and Judge Schechter was returning from vacation and would also be available that following Monday. This overstepping of her proper law enforcement role by Mrs. Pirro assisted Gail Hiler in that she was then able to file a custody petition and family offense petition later on that month in Westchester County, in a blatant attempt at forum shopping
and at getting rid of the law guardian in New York County.

Mrs. Pirro truly had no reason to assist in this way, nor was she justified in overcharging this mother with a baseless felony count. I believe she did so for the purpose of opposing bail at Ms. Kelly’s arraignment, on March 7, 2003, and thereby again bolstered the custody case of the non-parent resident of Westchester County, Gail Hiler. Again, Mrs. Pirro contributed to this tragedy by not producing the incarcerated mother from the local Westchester County jail in Valhalla for her dispositional hearing in New York County Family Court on March 20, 2003, at which time custody was erroneously and improperly awarded to Gail Hiler in this mother’s absence.

All visitation was denied, again unlawfully and improperly, while the mother remained incarcerated another ten months.

YES, MRS. PIRRO ACTED IMPROPERLY AND OVERSTEPPED HER LEGITIMATE LAW ENFORCEMENT ROLE AND SET IN MOTION AND CONTINUED TO ENHANCE THE PROSPECTS OF THE PROTRACTED SEPARATION OF THIS MOTHER AND CHILD, A TRAGEDY BY ALL ACCOUNTS INCLUDING THE APPELLATE PANEL THAT REVERSED THE UNLAWFUL
FAMILY COURT ORDERS, AND A TRAGEDY COMPOUNDED BY MRS. HILER NOT WANTING TO CARE FOR TRISTRAM HERSELF ANYWAY AND SOON THEREAFTER SHIPPING THE CHILD OUT OF STATE SOME THREE THOUSAND MILES AWAY TO LIVE ISOLATED AND APART FROM HIS SOLE SURVIVING PARENT AND HIS SOLE SURVIVING MATERNAL GRANDPARENTS.

MRS. PIRRO SHOULD BE HELD TO ACCOUNT FOR DOING THIS. I QUITE AGREE, IT DOES DENUDE HER CLAIM TO BE A CHAMPION OF VICTIMS OF DOMESTIC VIOLENCE. AND, IT IS NO JUSTIFICATION FOR WHAT MRS. PIRRO DID HERE THAT THIS MOTHER VIOLATED A FAMILY COURT ORDER OF ANOTHER COUNTY WHEN SHE FLED WITH HER CHILD TO ESCAPE HER HUSBAND’S DEATH THREATS AND PROTECT HER CHILD AS IS NOW CONCEDED BY GAIL HILER HERSELF. HER BROTHER, CRAIG KELLY, WAS LIVING IN HER HOME FULL TIME AND CARING FOR THE CHILD.

Of course, at the time Jing fled with her son to China both Gail Hiler and Craig Kelly, now deceased, both of whom were practicing lawyers, LIED about where Craig was living and claimed he was living full-time with Gail Hiler’s husband’s father, Tom Hiler, in Brooklyn, New York. IT IS NO JUSTIFICATION TO MRS. PIRRO THAT JING KELLY FLED UNDER THESE CIRCUMSTANCES AND THAT THIS TECHNICALLY
VIOLATED AN ADJACENT COUNTY’S FAMILY COURT ORDER BECAUSE:

a. No criminal prosecution was warranted here given the mitigating circumstances and the fact that the Family Court that issued the order had the power to punish the mother for contempt of court and imprison her for up to six months if the judge felt this was warranted;

b. it is one thing to prosecute a crime but it is another thing to overstep the law enforcement role and tailor the prosecution in such a way as to bolster the custody chances of a non-parent who happens to be a resident of the county, as happened here.

SO, BY ALL MEANS, HOLD JEANINE PIRRO TO ACCOUNT FOR HER MISFEASANCE AND THE TRAGEDY SHE HELPED CREATE. I MEAN DO YOU KNOW OF ANY OTHER CASE WHERE A MOTHER HAS BEEN JAILED FOR THIRTEEN MONTHS AND DENIED VISITATION AND CONTACT WITH HER CHILD FOR FOUR YEARS FOR HAVING FLED THE JURISDICTION WITH
HER CHILD. BUT, I BEG TO DIFFER WITH YOUR TERMINOLOGY THAT MRS. PIRRO IS GUILTY OF KIDNAPPING TRISTRAM OR AIDING AND ABETTING GAIL HILER TO DO SO. WHAT SHE IS TRULY GUILTY OF IS ABUSING HER ROLE AND POWER AS A PROSECUTOR AND LAW ENFORCEMENT OFFICIAL TO AID AND ABET THE CUSTODY CHANCES OF A LOCAL NON-PARENT RESIDENT. AND, SHE DID THIS IN A WAY THAT CIRCUMVENTED NORMAL COURT PROCESS AND INQUIRY INTO BEST INTERESTS OF THE CHILD. AND SHE DID THIS WITH AN OVERZEALOUSNESS THAT RAISES SUSPICION AS TO WHAT OTHER FACTORS MIGHT BE INVOLVED HERE. YES, SHE SHOULD BE INQUIRED OF, MADE TO EXPLAIN HER ACTIONS, and your readers should be writing and calling her in such regard.

Jing has an appeal pending in the Second Department from her misdemeanor conviction and which appeal raises the issue of whether the trial judge in the criminal case improperly prohibited the jury from considering Jing’s affirmative defenses to the lower misdemeanor count of custodial interference in the second degree, of which she was ultimately convicted. I am hopeful justice will prevail and the misdemeanor conviction will be reversed and vacated for this mother, as I do not believe any jury would have convicted Jing Kelly of custodial interference
in the second degree for fleeing with her child in June 2001 if allowed to consider all the circumstances and mitigating factors that existed at the time.

I believe continued press coverage of this situation is essential to justice. I appreciate the strong voice your publication has raised to draw attention to the current tragic situation.