Our Readers Respond...

Dear Editor:

Reading your article regarding Judge Judith Kaye being out of touch, you mentioned the fact that it is well-known in political circles that Giulio Cavallo was furious at Dennis Glazer, spouse of Westchester County District Attorney Janet DiFiore, for reneging on his promise to pay Cavallo $30,000 for the cross-endorsement of the Independence Party.

I have been in the political circle of Westchester County for years and can say, without a doubt, that this is an extremely irresponsible statement and an outright fabrication.

Knowing Dennis Glazer for over twenty years, there has never been an individual that I have met that has higher professional and ethical standards, and one that is of stronger moral character.

Steve Sacripanti
North White Plains

Dear Editor:

Thank you for your continuing coverage of the Jing Kelly case. The fact that Gail Hiler cared little for Tristram, and instead was, and is, motivated by a misguided desire for revenge and retaliation is illustrated by the fact that
she sent Tristram away from her home in July 2003 to reside out of state with her brother, Douglas Kelly, in California. This was done only three months after an equally misguided family court judge erroneously, unlawfully, and improperly awarded permanent custody of Tristram to Gail Hiler (on March 20, 2003 in New York County Family Court) on a day Jing was not produced and could not participate.

It is now clear that during this six month period, Tristram was fairing poorly in Gail Hiler’s care. He was having “night tremors” while sleeping all alone on the third floor of Mrs. Hiler’s home, and, to Mrs. Hiler’s great annoyance, she had to go upstairs to the empty third floor quarters of this traumatized two year-
old child and comfort him so that he could fall back asleep. It never occurred to Ms. Hiler that the child should not be left alone up there on the third floor of her home but instead should have been near others in the household.

Poor Tristram, no wonder he was crying and having nightmares. No wonder he clutched the coat he had been wearing when he was last with his mother and sat numbly and quietly under a table for long periods of time (no doubt ignored by Mrs. Hiler all the while). It turns out that Tristram was brought to a child psychiatrist by Mrs. Hiler at least four times before she shipped him out to California to live outside her home. Before making this arrangement, she had sent Tristram to live in North Carolina with her sister, Tracy Kelly.

Mrs. Hiler told no one of Tristram’s difficulties while in her care. Mrs. Hiler told no one that she was shopping Tristram around to other paternal relatives and not caring for Tristram any longer herself. Astonishingly, Mrs. Hiler took Tristram back into her home during the month of January 2004 when both she and Douglas Kelly testified at Jing Kelly’s criminal trial. I guess she wanted to give everyone, including the court and jury, the impression that she was still caring for her ward. As soon as the trial ended, however, Tristram was rushed right
back to California to stay with Douglas Kelly. Would the jury have convicted Jing Kelly of anything had they known that Gail Hiler had shipped Tristram out of her home and was concealing this from everyone? It is a good question.

Mrs. Hiler contributed mightily to the circumstances which led to Jing Kelly’s decision to flee with her one-year-old son to China. For instance, she violated the terms of the temporary parole order by allowing Tristram’s father, Craig Kelly, to reside on a full time basis in her home all during the period Tristram was in her care (from December 26, 2000 through June 20, 2001). Moreover, Mrs. Hiler lied about this in her sworn testimony in the initial family court proceedings by claiming that her brother, Craig, was living in Brooklyn with her husband’s father. This was untrue at the time and Mrs. Hiler knew this full well.

The fact that Mrs. Hiler willfully and knowingly committed perjury in the above regard, speaks volumes about her own character and motivation. If she truly cared about Tristram, she would not have lied about the fact that her brother, Craig, was living full time in her household and alone with the baby without her being present, as had been required by the court order. Nor would she have refused to bring Tristram into Manhattan for visits with his mother and grandparents.

Beyond question, one of the most bizarre aspects of this case are the ploys used by the office of the Westchester
County District Attorney and the Town of Mamaroneck Police Department to arrange for Gail Hiler to go to Canada on Saturday, January 4, 2003 and, without entering customs, hang out at the Vancouver Airport until the police there could hand Tristram over to her (without benefit of any prior court scrutiny of this action being had either in New York or Canada). Everyone knew that Jing would be appearing before the Canadian court
the following Monday, January 6, 2003, and that Judge Schechter would be returning from vacation that day.

Thus, either the New York County Family Court (with involvement of the law guardian and mother’s counsel and ACS attorney) or the Canadian Court (in consultation with Judge Schechter by telephone conference) could have reviewed the matter and made a proper determination as to how things should have been handled.
What was the rush here? Why did Gail Hiler and the Westchester County District Attorney, Jeanine Pirro, and the Town of Mamaroneck Police want to snatch Tristram from Canada before any court or judge could inquire as to the facts and circumstances, and determine what was best for the child?

There is no excusing this. It was not a proper law enforcement role. Everyone in the office of the Westchester
County District Attorney or the Town of Mamaroneck Police Department who played a role in this improper
transfer of the child should hang their heads in shame. The impact on Tristram was disastrous. He languished in
the Hiler household while Mrs. Hiler herself basked in a media frenzy as television crews and newspaper reporters and neighbors trooped in and out of her household.

Mrs. Hiler testified that there was rarely a time when at least twenty or more people were not present
at her house. Tristram was overwhelmed, for sure. It appears that this unorthodox child transfer was purposely
arranged in Canada, with local police also acting independently of the courts there, so that Gail Hiler could
apply for custody of Tristram in Westchester County and bypass New York County entirely (where all the prior
litigation had occurred). Mrs. Hiler’s petitions were all transferred to New York County later on, anyway.
Not to be outdone, Judge Schechter in New York County Family Court denied this child visitation with his
mother, when Jing was finally returned to New York and arraigned and denied bail (on March 7, 2003).

The Valhalla jail facility was but a stone’s throw distant from the Larchmont home of Gail Hiler and visitation at the jail would have been supervised by a staff social worker employed for this purpose and would have been occurring in the most secure setting imaginable. It is unlikely that Jing Kelly could have gotten up, holding her
child, and simply walked out of that jail facility. Yet, this is the bogus reason the family court judge gave for refusing to order visitation at the time (a reason resoundingly rejected by the higher court on appeal). Just imagine how different Tristram’s life would be if this mother had been allowed to visit her son before he was transported back to New York and had she been allowed to visit her child while she was incarcerated in Valhalla pending her trial.

There comes a point when one has to ask, quite legitimately, why things were being done this way. What is so different about Jing Kelly that she did not deserve the normal application of law and common sense?

I have already marveled at the irony that Jeanine Pirro, the then-Westchester County District Attorney, was willing to spend thousands upon thousands of taxpayer dollars to prosecute this harmless mother for violating a temporary parole order issued by a court in a different county than Westchester, and to incarcerate that mother pending her criminal trial, but declined to secure the production of this mother to the very family court whose order had been previously violated, for conclusion of her neglect dispositional hearing. Does any of this make sense?

How coldhearted it was of Mrs. Pirro to refuse to spend $100 on transportation costs for this mother on March 20, 2003, the day of Jing Kelly’s continued family court hearing in New York County, while being willing to happily spend thousands and thousands to keep her locked up.

Equally coldhearted as Jeanine Pirro, Judge Schechter in the New York County Family Court refused to grant
an adjournment to Jing Kelly so that she could be produced on another date.

What was the rush here? The mother was still in jail awaiting her criminal trial and was not going anywhere. Tristram was still with Mrs. Hiler in Larchmont.

An adjournment would not have hurt anybody, but it would, perhaps, have enabled this mother to have a
say in what was being done with her child. The appellate court vigorously reversed and criticized this refusal on
the part of Judge Schechter to adjourn the matter instead of proceeding in the mother’s absence on March 20, 2003.

On that sad day in this child’s life, March 20, 2003, the New York County family court judge presiding over the
matter in the absence of the incarcerated mother and without taking any testimony from Gail Hiler whatsoever, awarded her permanent custody of Tristram.

This was not an authorized dispositional order under the Family Court Act and had dire consequences for the child. It was this unlawful and improper order, later reversed on appeal, that enabled Gail Hiler to begin sending Tristram around to other paternal relatives to secretly live out of state with them.

In addition to wrongly awarding custody of Tristram to Gail Hiler, Judge Schechter granted Mrs. Hiler a permanent order of protection (again without taking any testimony from Mrs. Hiler to establish a basis or justification for such relief) which prohibited this mother from attempting to contact her son or the Hiler home.

And, Judge Schechter denied visitation both to Jing Kelly and to the maternal grandparents, Ling Mei Xing and Hua Xiong, who reside in lower Manhattan. In essence, it was the erroneous, improper, and unlawful orders issued by Judge Schechter on March 20, 2003, that enabled Gail Hiler to isolate and conceal this child from
his birth mother and unlawfully and improperly transport the child out of state to reside in a different home.

Jing Kelly was freed from incarceration following the jury verdict rendered on January 27th, 2004. She was convicted not of the felony count that the Westchester District Attorney, Mrs. Pirro, had indicted her on, but of the misdemeanor count of custodial interference in the second degree. The maximum sentence of imprisonment on a misdemeanor is twelve months and were one to get the maximum sentence it would be customary and the norm to serve only eight months of it, due to getting one-third off for good behavior. Thus, Jing Kelly, who
had already served 13 months, had actually served an extra five months in jail for this offense. It is unlikely that Jing would have been sentenced to a year in jail on the misdemeanor conviction if she had been out on bail pending trial and had not yet done time. In truth, this mother probably spent more time in jail than any other mother convicted of the crime of Custodial Interference in the Second Degree in the State of New York. This is
because the Westchester County District Attorney, Jeanine Pirro, overcharged her with a felony count and opposed her release on bail pending trial.

One can only wonder what Jeanine Pirro was thinking or hoping to accomplish here. Certainly, she would not have advocated such harsh treatment for members of her own family who were found guilty of a crime.

Moreover, this needless prosecution of this mother with extraordinary ferocity and zeal, flies in the face of Mrs. Pirro’s often repeated claims that she is a champion for victims of domestic violence.

There was no need for any district attorney anywhere in the world to prosecute this mother for what she did. The
family court judge had sufficient power under Section 756 of the Judiciary Law to punish Jing Kelly for criminal contempt and incarcerate her for a period of up to six months and impose a fine as well. That was more than adequate punishment here.

There is no way that the New York County District Attorney’s office would have ever prosecuted this mother, knowing what they knew about her husband, Craig Kelly, who had been an assistant district attorney in that office. So why did Mrs. Pirro do so?

It was not a Westchester County family court order that was violated here. Any way you look at it, there was a
congruency between the over-zealous criminal prosecution of this mother and the totally unlawful rulings of the family court judge. Jing Kelly deserves a lot of credit for withstanding this battering in both the criminal court and family court. One can only imagine her dismay at learning, while confined in jail, that Judge Schechter had awarded custody of her son to Gail Hiler in her absence, and issued an Order of Protection barring her
from attempting to contact Gail Hiler or her son. It is now known that while Tristram was in the Hiler household during his mother’s criminal trial in January 2004, he saw a picture of Jing in the newspaper and pointing to it, exclaimed “mama.” It was not too late to save this situation, had Jing been granted contact and visitation
with her son, upon her release from incarceration in late January of 2004. The tragedy that unfolded here could readily have been avoided. It was not Jing Kelly’s fault that she did not regain visitation. She tried very hard by making applications of every manner to the Appellate Division, to the New York County Supreme Court, and to
Judge Schechter. The law guardian supported resumption of visitation, so why did it never occur?

Visitation for Jing and Tristram certainly would have occurred had Gail Hiler disclosed that Tristram was no
longer living in her home. Indeed, Jing probably would have then and there won outright custody of her son. The
refusal of Gail Hiler to disclose this cogent information to the various courts dealing with custody and visitation applications by this mother, including appellate courts, and to the law guardian, and to the mother herself was, and is, a crime; a crime far greater than anything Jing Kelly has ever done wrong.

Robert F. Wayburn