主题：【原创-评论】谈谈关于贺梅一案 “公正的审判” -- 梦里依稀
家园 【文摘】美法律专家对贺梅一案的评论--------贺梅案将列入西北大学法学院教材 [url]http://www.commercialappeal.com/mca/local_news/article/0,1426,MCA_437_2899689,
00.html[/url]
Judging from some opinions, legal experts both respectful and shocked
By Shirley Downing
Contact
May 20, 2004
Legal and child welfare experts are divided on the controversial May 12 ruling
that stripped a Chinese couple of parental rights to their 5-year-old
daughter.
Circuit Court Judge Robert Childers refused to return Anna Mae He to birth
parents Shaoqiang 'Jack' and wife Qin Luo 'Casey' He. The Hes have fought for
four years for the return of their first-born child from foster parents Jerry
and Louise Baker of Cordova.
Some lawyers praise Childers's professionalism and dedication to duty in the
20 years he's been on the bench. Other legal and child care experts use
"appalled," "stunned" or "shocked" in describing the ruling.
"This is an extraordinary case and an extraordinary opinion," said adoption
attorney Bob Tuke of Nashville, who served on a committee that helped rewrite
the state's adoption code in the mid-1990s.
Tuke said Childers used a "sound application of the law, including
constitutional principles" in reaching a decision.
Tuke also said the Hes' credibility was a factor - Childers simply did not
believe them.
Memphis Bar Association president John Heflin III said Childers "is a very
fine and experienced trial judge."
Childers has won numerous awards and is past president of the Tennessee Trial
Judges Association and past president of the Tennessee Judicial Conference, he
noted.
Heflin said the ruling "is a lengthy, detailed, factual analysis of the many,
many hours of testimony that he heard. Do I know whether he is right or not? I
don't know. I wasn't in the courtroom. Would I agree with him?
"Judges have the unfortunate situation that half their customers are unhappy
at the end of the case because they rule against somebody."
Other legal experts were not so generous. Steven Lubet, professor of law at
Northwestern in Chicago and author of several books on judicial and legal
ethics, said he was stunned by the ruling and its wording.
"I don't see how he can possibly find abandonment," Lubet said. "It is
inconceivable that he would find abandonment while the parents are actively
pursuing legal remedies to retrieve their child."
Lubet said Childers "draws every possible adverse inference against the Hes,
many of them with seemingly no support at all" while not using the same
reasoning with the Bakers.
Lubet said he plans to use the case in his classroom "to teach students how to
uncover unspoken assumptions in judicial opinions. It is just filled with
unspoken assumptions."
Richard Wexler, ????utive director of the National Coalition for Child
Protection Reform in Alexandria, Va., called the ruling "appalling."
"No matter how much the judge tries to divert our attention by spewing venom
at the Hes, at the bottom, this case is about wealth and poverty," Wexler
said.
Chris Zawisza, director of Child Advocacy Clinic at the University of Memphis
Law School, questioned the legal analysis of the 73-page ruling.
Beginning on Page 4, Childers describes the Bakers and their background, and
the Hes and their background. By Page 9 he is describing the Bakers as warm,
caring and filled with love for children. Over the next four pages, Childers
discusses the Hes and gives his opinion of their actions and motives.
Zawisza said the law "requires that the court not compare the natural parents
with adoptive parents in termination of parental rights proceedings because
the issue in a termination case is whether there is clear and convincing
evidence the parents either abused, neglected or abandoned the child, and that
is it.
"It is irrelevant what potential adoptive parents look like."
家园 法律的制定由利益决定 不同国家的法律不同源于国家的利益不同
共同的人类利益准则也会有差异
公正只是观念上的东西
家园 【文摘】美国各地法律专家对判决的震惊，同时“希望这个判决被推翻” Anna Mae decision botched by judge
By Wendi C. Thomas, Commercial Appeal
May 20, 2004
http://www.commercialappeal.com/mca/news_columnists/article/0,1426,MCA_646_2898787,00.html
If you let Circuit Court Judge Robert Childers tell it, Jack and Casey He are horrible parents.
Because of that, they don't deserve to get their 5-year-old daughter, Anna Mae He, back from her foster parents, Jerry and Louise Baker.
If you believe Childers (and I don't), the Hes are deceptive illegal immigrants motivated solely by their desire to stay in America.
If the Hes are bad as Childers claims, why hasn't the Department of Children's Services taken the Hes' other children away from them?
I'll tell you why. Because no American family is fighting to keep those children. And there's no proof the Hes are unfit parents.
Matters as complex as child custody cases are never as clear cut as Childers would have you believe.
His ruling to terminate the Hes' parental rights can be summed up in four words: Bakers good, Hes bad.
The Bakers, Childers says, are so wonderful that they missed church a few times so Anna Mae could see her biological parents.
On the other hand, the Hes had to lure Anna Mae to them with food during visits to the Bakers' home. Childers points this out as if to say, see, I told you they were bad.
The judge allows for no good will in the Hes' actions.
The Hes sent checks to the Bakers for Anna Mae's care, but the Bakers didn't cash them. The judge goes on to say the Hes didn't financially support their child.
The Hes brought Anna Mae gifts, but the fruit, clothing, toys and diapers were of "insubstantial economic value."
Hmm. I didn't know gifts had to have a high trade-in value to have worth.
Childers reluctantly acknowledges the risks of a "transcultural placement;" legalese for saying Anna is Chinese and they're white.
Then he pooh-poohs those risks, since they'll be erased by the Bakers' sensitivity.
The Bakers, I'm sure, are loving and caring parents.
But their best efforts to raise Anna Mae as a Chinese girl are destined to fall short.
No number of trips to Chinese festivals or Chinese churches, no number of visits from Chinese friends can replace waking up each morning to look into a face that looks like yours.
I can't shake the feeling that an anti-immigrant sentiment clouded Childers's judgment.
It's as if life in America is preferable to life anywhere else. But Childers can't come out and say that. Instead, he catalogs the Hes' every misstep (and granted, there are some) to make his case.
Mrs. He, Childers wrote, is "an impetuous person not subject to being intimidated. . . in achieving whatever she sets as her goal."
Mrs. He's goal? To reclaim her daughter, to which Childers assigns nefarious intent.
By the time I made it through the 73-page ruling I fully expected Childers to blame the Hes for global warm ing and rising gas prices.
Childers never proved the Hes are unfit parents. What he did prove is his version of justice is biased.
I hope it gets overturned.