The law is reason, without compassion
--Aristotle, 384BC – 322 BC
Fraud: Any act, expression, omission, or concealment calculated to deceive another to his or her disadvantage. (Merriam-Webster’s Dictionary of Law, 1996).
Dr. DX Yue, the author of the 15 point statement on Childer's ruling and the author of various other documents on judicial misconduct and other matters in the case has conducted a preliminary analysis on Judge Alan E. Highers' ruling. Dr. Yue will issue an anlysis on the Highers' ruling. The title of Dr. Yue's paper is tentatively set to be "Law, reason and judicial fraud".
Unlike the Childers ruling, Judge Highers' ruling is cool-headed, comprehensive on the facts (some findings were based on credibility alone, such as "that day"), and thorough on analysis. Given the constraints posed by the "15-point", Judge Highers produced the same overall conclusions as Childers. This is a remarkable intellectual feat.
It is like magic. Except there is nothing funny here. Folks of Tennessee will enjoy less rights because of it, there are lawyers citing this decision already. It is unfair, unjust and it is wrong.... but, can we catch the tricks?
Judge Highers' line of reasoning carefully avoided the mined areas covered by the "15-point".
On willful failure to support, in December 2004, after Hes filed their appeal brief, in preparation for the oral argument at the Court of Appeals, Dr. Yue proposed the new argument that Bakers had assumed all along that themselves had the full duty and responsibility to support AMH and their refusal of Hes' payment was thus permanent, therefore the Bakers could not accuse Hes with willful failure to support. This argument was adopted by the Hes and accepted by the Court of Appeals, which led to the reversal of trial court's conclusion on "willful failure to support".
On willful failure to visit, Judge Highers argued:
0) Statute requires the court to only look at the 4 months from Feb 20, 2001 to June 20, 2001 to determine whether the Hes willfully failed to visit. Many of Childers' findings such as so called "token visitation" before January 2001 were irrelevant. The fact that the Bakers impeded Hes' visit was also irrelevant, because it was more than 4 months in the past. (Judge Highers tacitly implied that Childers did lie in finding that Bakers never hindered or attempted to hinder Hes' visits.)
1) Deputy Astor testified that he told the Hes not to come back to the Bakers' home on "that day" of January 28th, 2001. He testified that the Hes could back later that night.
2) Hes made no attempt to visit. Hes' phone message left at the Bakers' answer machine did not mention visit. Candice Brown testified that visitation was not discussed in Hes' requests for custody.
3) Although Childers' argument on INS calls and Hes' petition for custody was logically deficient, the Court of Appeals evaluates the findings de novo. Where Childers erred, Highers was able to make amended arguments based on other evidence before 2001:
i) Diane Chunn, based on her notes, testified that in 1999, Mr. He told her Mrs. He wanted to retain guardianship of AMH to remain in the U.S.
ii) CASA expressed concern in 2000 that Hes wanted custody of AMH to become US citizens.
iii) Mr. He testified that he might have received INS calls before or after the Hes filed petition for custody in 2000 and 2001.
iv) Since the Hes petitioned for AMH custody in April 2001 and custody for AMH would be sufficient, the fact they sent their son Andy to China in May 2001 could not prove their intention one way or the other.
v) Since Mr. He knew he had the right to a speedy trial, he knew that the criminal case could only provide temporary protection against deportation.
vi) Clear and convincing evidence needs only "highly probable" proof.
vii) It is thus clear and convincing that Hes' April 9, 2001 petition for custody was fake.
(Judge Highers did not make this key "deportation argument" in such a logical way, but based on the evidence he presented and the conclusion he "jumped" to, we could establish the links for him).
4) Knowledge of the relevant law is not required to conclude willfulness, it is but one of the components.
5) The 14th Amendment does not provide protection against actions brought by private individuals.
6) The result of the ruling might be unjust, but law is law, the court does not make law, the court follows the statute to the book.
The above summary of Judge Highers' reasoning is presented here so legal experts supporting the Hes can quickly grasp the essence of the ruling and develop counter arguments. The Hes have sent invitations to many experts requesting help.
Dr. Yue has completed the analysis, his paper can be downloaded from the link under "Key documents" on the left. The paper shatters Highers ruling. Note: the file has been encrypted with PGP, available for free download at http://www.pgp.com/downloads/desktoptrial.html . Dr. Yue will provide decipher key to select individuals and organizations.
Due to the explosive nature of the document, Dr. Yue decided to not reveal the key content of his paper to the public at this point. However, he has provided some small pieces of secondary importance, for example,
1) Hes' petition for AMH custody on April 9,2001 should be categorized as attempt to visit, instead of excuses for not visiting.
2) The fact that Hes "willfully failed" to appeal the June 2000 Juvenile Court denial of their May 2000 petition for AMH custody seems to run against the argument that the Hes wanted AMH custody for the sole purpose to avoid deportation. (Let's see how Parrish can defeat this)
|Majority Opinion on AMH case appeal|
|Law, reason and judicial fraud|