Breach and Forfeiture A breach of the bail bond occurs in both civil and criminal actions when the defendant “jumps bail” or “skips bail”—that is, deliberate-ly fails to return to court
Trang 1delay or postponement in the proceeding, which
is not attributable to the accused, usually con-stitutes a ground for bail—in some jurisdictions,
by absolute right; more frequently, at the dis-cretion of the court
In jurisdictions in which it is neither proscribed nor regarded as an absolute right, the grant of bail pending a motion for a new trial, a review, or an appeal is also discretionary
The grant of bail is then determined in light of the probability of reversal, the nature of the crime, the likelihood of the defendant’s escape, and the character of the defendant
The decision to grant or deny bail is reviewable, but the scope of the review is limited to whether the court abused its discre-tion in its determinadiscre-tion
The amount of bail set is within the discretion of the court Once fixed, it should not be modified, except for GOOD CAUSE An increase cannot be authorized when theARREST WARRANT specifies the amount of the bail An application for a change in bail is presented to the court by a motion based on anAFFIDAVIT(a voluntary written statement of facts) confirmed
by the oath of the person making it The affidavit must be taken before a person autho-rized to administer such an oath and must contain the facts justifying the change The
EIGHTH AMENDMENTto the Constitution and the provisions of most state constitutions prohibit excessive bail, meaning bail in an amount greater than that necessary to ensure the defendant’s appearance at trial
The Bail Reform Act of 1984 helped to set guidelines allowing courts to consider the danger a defendant might present if released
on bail This response to the problem of crimes committed by individuals who had been released on bail marked a significant departure from earlier philosophies surrounding bail Bail laws took on a new importance; they would ensure the appearance of the defendant in proceedings, and they would see to the safety
of the community into which the defendant was released
Pursuant to the 1984 act, if the court deems that the accused may, in fact, pose a threat to the safety of the community, the accused may
be held without bail In 1987, United States v
Salerno, 481 U.S 739, 107 S Ct 2095, 95 L Ed
2d 697, addressed the constitutionality of holding an individual without bail while
awaiting criminal trial The Supreme Court held that due process was not violated by the detention of individuals without bail
Breach and Forfeiture
A breach of the bail bond occurs in both civil and criminal actions when the defendant
“jumps bail” or “skips bail”—that is,
deliberate-ly fails to return to court on the specified date, thereby forfeiting the amount of the bond The act of jumping bail is either a misdemeanor or a felony, depending upon statute The mandatory appearance required in a bail arrangement consists not merely of responding to the charges but also of attendance by the defendant at the trial andSENTENCINGby the court Appearance by counsel ordinarily does not prevent a breach, although under some statutes, where the offense
is a misdemeanor, such an appearance might be sufficient
When a bond is breached, the court enters a judgment of FORFEITURE of the bail In some jurisdictions, the judgment is appealable, but only if the failure to comply with the conditions
of the bond was excusable and the state suffered
no loss of rights against the defendant
A final judgment normally cannot be entered on recognizance or bail bond without additional proceedings Such proceedings are usually of a civil nature and follow the forfeiture
of bail These proceedings can be commenced
by aWRIT(a court order) of scire facias (a judicial writ requiring the person against whom it is brought toSHOW CAUSEwhy the party bringing it should not have advantage of such record) or by
an independent action
FURTHER READINGS Bredefeld, Nicole J 2001 “The Bail Reform Act of 1984 and Felons who Possess Weapons: Discrepancy among the Federal Courts ” Seton Hall Legislative Journal 26 (September).
Colbert, Douglas L., Ray Paternoster, and Shawn Bushway.
2002 “Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail ” Cardozo Law Review 23 (May).
Goldfarb, Ronald 1965 Ransom: A Critique of the American Bail System New York: Harper & Row.
Israel, Jerold H., and Wayne R LaFave, eds 2006 Criminal Procedure: Constitutional Limitations in a Nutshell 7th
ed Eagan, MN: West.
LaFave, Wayne R., Jerold H Israel, and Nancy J King, eds.
2007 2006 Supplement to Modern Criminal Procedure and Advanced Criminal Procedure 11th ed St Paul, MN: Thomson West.
Sharma, R 2002 Human Rights and Bail New Delhi, India: APH.
468 BAIL
Trang 2Thomas, Wayne H 1976 Bail Reform in America Berkeley:
Univ of California Press.
U.S House of Representatives 2000 Bounty Hunter
Responsibility Act of 1999: Hearing before the
Subcom-mittee on the Constitution of the ComSubcom-mittee on the
Judiciary, House of Representatives, One Hundred Sixth
Congress, Second Session, on H.R 2964, March 30, 2000.
Washington, D.C.: U.S Government Printing Office.
Available at http://commdocs.house.gov/committees/
judiciary/hju65062.000/hju65062_0f.htm; website home
page: http://commdocs.house.gov (accessed July 5, 2009).
CROSS REFERENCES
Due Process of Law; Eighth Amendment; Recognizance.
BAIL BOND
A written promise signed by a defendant or a
surety (one who promises to act in place of
another) to pay an amount fixed by a court
should the defendant named in the document fail
to appear in court for the designated criminal
proceeding at the date and time specified
A bail bond is one method used to obtain
the release of a DEFENDANT awaiting trial upon
criminal charges from the custody of law
enforcement officials The defendant, the
defen-dant’s family and friends, or a professional bail
bond agent (or bail agent) executes a document
that promises to forfeit the sum of money
determined by the court to be commensurate
with the gravity of the alleged offense if the
defendant fails to return for the trial date
Most defendants are financially unable to
post their own bail, so they seek help from a bail
agent, who, for a nonrefundable fee of 10 to 20
percent of the amount of the bail, posts bail A
bail agent becomes liable to the court for the full
amount of bail if the defendant fails to appear
for the court date Before agreeing to assume the
risk of posting bail, the bail agent requires
collateral from the defendant, such as jewelry,
SECURITIES, or written guaranties by creditworthy
friends or relatives of the defendant This
collateral acts as security to ensure repayment
for any losses the bail agent might incur If the
defendant appears to be a “poor risk,” and
unlikely to return to court for trial, the bail
agent will refuse to post bail A defendant who
has a record of steady employment, has resided
in the community for a reasonable length of
time, and has no prior criminal record is
considered to be a good risk
The bail agent, the defendant, or another
interested party posts bail in the form of the bail
bond at the court where the defendant is
required to return for the proceeding The court clerk issues a bail ticket or similar document, which is sent to the police to notify them that bail has been met The defendant is released from custody when the bail ticket is received by the police LIABILITY under the bail bond ends when the defendant fulfills the conditions of the bond by appearing in court
on the specified date, or if the terms of the bond become impossible to execute, such as by the death of the defendant or by his or her arrest, detention, or imprisonment on another offense
in the same or different jurisdiction
If a defendant fails to appear for trial on the date specified in the bail bond, the court will issue a WARRANT for the defendant’s arrest for
“jumping bail,” and the amount of the bond will be forfeited to the court The bail agent is generally authorized by statute to arrest the defendant and bring him or her back for criminal proceedings
Kentucky, Illinois, Wisconsin, Nebraska, and Oregon have enacted laws making it illegal
to post bail for profit, thereby outlawing the occupation of bail bond agent
A bail bond may be similarly used in cases
of civil arrest to prevent a defendant from fleeing a jurisdiction to avoid LITIGATION or fraudulently concealing or disposing of assets in order to become JUDGMENT PROOF (incapable of satisfying an award made against him or her if thePLAINTIFFis successful)
FURTHER READINGS Berand, Laura, and Jean Montoya 2002 Criminal Litigation
in Action Notre Dame, IN: National Institute for Trial Advocacy.
Marcus, Paul, and Jack Zimmerman 2009 Criminal Procedure in Practice 3d ed Notre Dame, IN: National Institute for Trial Advocacy.
Simmons, Don, Jr 2002 “Making a Living off Making Bail.”
Roanoke Times & World News.
CROSS REFERENCES Asset; Collateral; Judgment Proof.
BAILEE One to whom personal property is entrusted for a particular purpose by another, the bailor, accord-ing to the terms of an express or implied agreement
CROSS REFERENCE Bailment.
Trang 3vBAILEY, FRANCIS LEE The career of ATTORNEY F Lee Bailey is a celebrated one Few criminal defense lawyers have earned as much success or notoriety as the tough-talking former Marine lieutenant, known for winning what have often been considered hopeless cases Early in his career, Bailey built a reputation for fastidious attention to detail as
an investigator who could ferret out the minutiae needed to acquit his clients His
CROSS-EXAMINATION style—long on hard-hitting machismo—earned him comparisons to some
of the twentieth century’s most noted lawyers
By his mid-30s, he had won a string of victories
in shocking, nationally publicized cases, includ-ing an important U.S Supreme Court rulinclud-ing on
PRETRIAL PUBLICITY His books on law became bestsellers, but controversy followed his criti-cisms of the legal system and his sometimes risky defense strategies In 1994 he joined the defense team in the trial ofO.J.SIMPSONfor the
MURDER of Nicole Brown Simpson and her friend Ronald Lyle Goldman
Bailey might never have become a lawyer if
he had not dropped out of college Born in the Boston suburb of Waltham, Massachusetts, on June 10, 1933, he was the son of an advertising man and a schoolteacher who founded a large nursery school In his teens, Bailey excelled at Kimball Union Academy, a prep school, and won a scholarship to attend Harvard in 1950 His goal was to study English Yet academia could not hold him for long; he wanted adventure Dropping out of Harvard at the end of his sophomore year, he enrolled in the Navy flight-training program and eventually joined the Marines, where he at first flew jet fighters Soon Bailey had switched gears and was defending accused service members as part of the legal staff at the Cherry Point Marine Corps Air Station in North Carolina Military life would leave its mark on him More than 40 years later, he would write articles about jets for Flying magazine and, while defending Simpson, would say that he had spoken with a witness who was a veteran, as one Marine to another The experience of fighting courts-martial convinced Bailey to become a lawyer in civilian life Leaving the service with the rank of second lieutenant, he entered Boston University Law School, which admitted him on the strength of his considerable MILITARY LAW practice Once again, his ambition could scarcely be satisfied in books, and the precocious student founded a private detective agency The firm did fieldwork
F Lee Bailey.
JASON LAVERIS/
FILMMAGIC/GETTY
IMAGES
Francis Lee Bailey 1933–
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1933 Born,
Waltham, Mass.
1952 Left Harvard to become Navy (later Marine) fighter pilot
1960 Graduated top of class from Boston University Law School
1966 Argued Sheppard case before Supreme Court;
Sheppard won acquittal on retrial
1974 Unsuccessful defense of Patricia Hearst in SLA trial
1971 The Defense Never Rests:
The Art of Cross-Examination published
1982 Beat drunk driving charge with help of Robert Shapiro
1994 O.J Simpson charged with murder of Nicole Brown Simpson and Ronald Goldman
1995 Defense team won acquittal in O.J.
Simpson trial
2001 Florida Supreme Court banned Bailey from practicing law
in Fla.
2003 Supreme Court
of Massachusetts upheld decision to disbar Bailey
1961–73 Vietnam War 1950–53
Korean War 1939–45
World War II
470 BAILEY, FRANCIS LEE
Trang 4to help attorneys prepare their cases, and Bailey
claimed to devote sixty hours a week to this
endeavor alone It paid off: he handled some
two thousand cases, honed his skills as an
investigator, and later sold the agency The long
extracurricular hours did not stop him from
finishing, in 1960, at the top of his class with the
highest grade point average in the school’s
history
Bailey next studied the lie detector at the
Keeler POLYGRAPH Institute in Chicago, a tool
much used in the courtrooms of the era The
skill he acquired there led to his first job, at age
27, as a polygraph expert hired by the defense in
a highly publicized Boston trial, the Torso
Murder case—so named because prosecutors
charged the DEFENDANT, George Edgerly, with
dismembering his wife and dumping the pieces
of her body in the Merrimack River Edgerly
had failed a lie detector test, making the case
difficult for the defense Bailey was hired to help
turn the case around When the lead attorney
suffered a heart attack, Bailey took over the case
and won an acquittal for the defendant His
victory in the Edgerly case was the first of
several in high profile cases over the next
decade Most notable was Bailey’s role in the
murder appeal of Dr.SAMUEL H SHEPPARD, who
had been convicted of second-degree murder in
the bludgeoning death of his wife, Marilyn
Sheppard In 1966, Bailey helped convince the
U.S Supreme Court that the trial judge had
erred in not shielding Sheppard from pretrial
publicity, thus denying him a fair trial—
establishing an important new standard for
defendants’ rights (Sheppard v Maxwell, 384
U.S 333, 86 S Ct 1507, 16 L Ed 2d 600) He
subsequently cleared Sheppard
The Sheppard case launched Bailey’s career
Not only was he now proven in court, he was
also attaining celebrity status News magazines
extolled his skills at cross-examination, with Life
Magazine saying in 1967 that he was
“methodi-cal and relentless, boring in and tunneling
under his prey like a determined badger.”
Frequently, comparisons to the fictional
televi-sion character Perry Mason cropped up, which
Bailey resented; just as often came comparisons
to the great criminal defense lawyer CLARENCE
DARROW, which he did nothing to discourage
Preparation and analysis were Bailey’s most
renowned legal skills, yet what brought him
public attention was his talent for theatrics His
style was swaggering: he could thunderously tell
a courtroom that the charges against his client were “10 pounds of hogwash in a five-pound bag” or declare that he had just won a
“thumping acquittal.” He viewed LITIGATION as
“the true substitute for gladiatorial combat.” By the time the ABC television network gave him a slot in 1967 on the program Good Company, where he chatted up celebrities, he was himself a household name His 1971 book, The Defense Never Rests: The Art of Cross-Examination, became a bestseller Several legal, nonfiction, and fiction books followed
For Bailey, fame was a double-edged sword that brought both attention and criticism Often sought out by the news media for his opinions,
he used their interviews as soapboxes from which to call for legal reforms He argued that criminal defense attorneys needed several addi-tional years of training; held that fewer frivolous lawsuits would tie up the courts if the U.S legal system were to imitate the more rigorous British one; and, on the lecture circuit, even suggested that crime could be prevented by making it illegal for people to carry more than $500 at a time He also simply liked the limelight: As the equally famous attorney Melvin M Belli recalled, he and Bailey once stood at a bar betting each other $5 over who would be recognized first Not all of Bailey’s pronounce-ments met with praise; his outspokenness was sometimes seen as grandstanding Ironically, for the attorney who had won Sheppard, he was criticized by the Massachusetts BAR ASSOCIATION
for saying too much outside of court, and in
1971 the Supreme Court of New Jersey barred him for a year from practicing law there for similar reasons
In 1974 Bailey faced his Waterloo when he unsuccessfully defended the publishing heiress
PATRICIA HEARST Hearst had stunned U.S citizens when, after being kidnapped, she was photo-graphed carrying an automatic weapon in a San Francisco bank heist On trial for ROBBERY, she claimed to have been brainwashed by her abductors, a terrorist group known as the Symbionese Liberation Army (SLA) In orches-trating her defense, Bailey was widely criticized for the risky strategy of putting her on the
WITNESS STAND, where she took the FIFTH AMENDMENT 42 times to avoid answering ques-tions Years after her conviction, Hearst herself blamed Bailey, arguing in a 1980 appeal that the attorney had been less interested in her defense than in writing a book about the case The U.S
THOSE WHO THINK THE INFORMATION BROUGHT OUT AT A CRIMINAL TRIAL IS THE TRUTH,THE WHOLE TRUTH,AND NOTHING BUT THE TRUTH ARE FOOLS
—F RANCIS B AILEY
Trang 5Ninth Circuit Court of Appeals ruled that
“Bailey’s potential CONFLICT OF INTEREST is virtually admitted,” and granted Hearst a new hearing (United States v Hearst, 638 F.2d 1190 [9th Cir 1980])
After the Hearst trial, Bailey disappeared from public view for a time Nevertheless, his reputation
as“flamboyant” and a “legend” persisted and he continued to win cases In 1982 he attracted national attention again when he beat a drunk driving charge withLEGAL REPRESENTATIONfrom his friend,ROBERT L.SHAPIRO Bailey complained that the police had picked on him because he was famous Soon he was campaigning publicly against what he saw as police harassment, warning,“The cops have decided to set some fierce public examples of their new hard line, probably to scare drivers into going easy on the booze.” He promptly wrote a legal self-help book titled How
to Protect Yourself against Cops in California and Other Strange Places, purporting to be a guide to avoiding unfair drunk driving convictions
In 1994 the trial of Simpson returned Bailey
to the spotlight when he and Shapiro were hired for the defense team However, before the trial even began, the old friends engaged in a public feud Shapiro accused Bailey of trying to destroy his credibility by leaking information to the press, comparing Bailey to a snake and demanding his removal from the case In reply, Bailey criticized his colleague’s “public outburst.” According to Newsweek, Simpson admonished the two bicker-ing attorneys, remindbicker-ing them that his life was at stake The spat died down, and in March of 1995 Bailey cross-examined a key prosecution witness, police detective Mark Fuhrman
Surrounded by high expectations, the cross-examination was widely portrayed as a come-back attempt for the 62-year-old Bailey He rose
to the occasion with high expectations of his own, promising to “dismantle” Fuhrman The defense had branded the detective a racist and alleged that he had planted a key piece of evidence at Simpson’s estate: a bloody glove
Bailey’s difficult job was to prove that Fuhrman had planted evidence and had once used the pejorative nigger; Fuhrman never conceded either point, despite several days of grilling on the stand PROSECUTOR MARCIA CLARK attacked Bailey on several points, arguing that he had misrepresented what a Marine sergeant would
TESTIFY to as to Fuhrman’s language in the Marines and that he was manufacturing evi-dence with his conjecture that Fuhrman had
sneaked the bloody glove to the crime scene in a plastic bag in his sock
After Bailey’s questioning of Fuhrman, several prominent legal analysts argued that he had flopped He defended his performance in Time magazine using a comparison that recalled the earliest praises of his career:“I’m not Perry Mason; nobody is Other lawyers whom I respect told me that given what I had to work with, it was good Norman Mailer called me and said it was flawless So I feel good.”
In March of 1996 Bailey himself became the subject of criminal prosecution after he and the United States government had a disagreement over who was entitled to millions of dollars of stock formerly held by Claude Duboc, a drug dealer and client of Bailey The government demandedFORFEITUREof the stock, but Bailey said
a plea bargain he had negotiated with the government on behalf of Duboc allowed Bailey
to keep it When Bailey refused to surrender 2.3 million dollars to the federal district court in Tallahassee, Florida, he was sentenced to six months in jail forCONTEMPT In August of 2000 a federal judge held Bailey in contempt of court for failing to turn over the Duboc moneys However, the judge declined to jail or fine Bailey on the grounds that federal prosecutors failed to properly trace the money or to recover assets from Bailey In November of 2001 the Florida Supreme Court issued a decision based on Bailey’s mishandling of the Duboc stock funds that ordered Bailey to be disbarred from practicing law in Florida In April
of 2003 the Supreme Judicial Court of Massachu-setts issued a unanimous decision upholding the decision to disbar Bailey on the grounds that he deliberately broke ethics rules
During the 2000s, Bailey has traveled the country giving lectures on his career and cases
He has appeared as a legal commentator on television shows such as Larry King Live, Today, and Good Morning America He also writes fiction and non-fiction works
FURTHER READINGS Ash, Jim August 31, 2001 “Bailey’s Future as Lawyer Rests with State ’s High Court.” The Palm Beach Post Bailey, F Lee 1971 The Defense Never Rests New York: Stein and Day.
“Contempt Ruling for F Lee Bailey: He’s Spared Jail in Legal Fees Dispute ” August 18, 2000 Newsday, A13 CROSS REFERENCES
Hearst, Patty; Cochran, Johnnie L., Jr.; Simpson, O J.
472 BAILEY, FRANCIS LEE
Trang 6An individual who is entrusted with some
authority, care, guardianship, or jurisdiction over
designated persons or property One who acts in a
managerial or ministerial capacity or takes care of
land, goods, and chattels of another in order to
make the best profit for the owner A minor officer
of a court serving primarily as a messenger or
usher A low-level court official or sheriff’s deputy
whose duty is to preserve and protect orderly
conduct in court proceedings
BAILMENT
The temporary placement of control over, or
possession of, personal property by one person, the
bailor, into the hands of another, the bailee, for a
designated purpose upon which the parties have
agreed
The term bailment is derived from the
French bailor, “to deliver.” It is generally
considered to be a contractual relationship
because the bailor and bailee, either expressly
or impliedly, bind themselves to act according to
particular terms The bailee receives only control
or possession of the property while the bailor
retains the ownership interests in it During the
specific period a bailment exists, the bailee’s
interest in the property is superior to that of all
others, including the bailor, unless the bailee
violates some term of the agreement Once the
purpose for which the property has been
delivered has been accomplished, the property
will be returned to the bailor or otherwise
disposed of pursuant to the bailor’s directions
A bailment is not the same as a sale, which is
an intentional transfer of ownership ofPERSONAL
PROPERTYin exchange for something of value A
bailment involves only a transfer of possession or
custody, not of ownership A rental or lease of
personal property might be a bailment, depending
upon the agreement of the parties A bailment is
created when a parking garage attendant, the
bailee, is given the keys to a motor vehicle by its
owner, the bailor The owner, in addition to
renting the space, has transferred possession and
control of the vehicle by relinquishing its keys to
the attendant If the keys were not made available
and the vehicle was locked, the arrangement
would be strictly a rental or lease, because there
was no transfer of possession A gratuitous loan
and the delivery of property for repair or
safekeeping are also typical situations in which a
bailment is created
Categories
There are three types of bailments: (1) for the benefit of the bailor and bailee; (2) for the sole benefit of the bailor; and (3) for the sole benefit
of the bailee
A bailment for the mutual benefit of the parties is created when there is an exchange of performances between the parties A bailment for the repair of an item is a bailment for mutual benefit when the bailee receives a fee in exchange for his or her work
A bailor receives the sole benefit from a bailment when a bailee acts gratuitously—for example, if a restaurant, a bailee, provides an attended coatroom free of charge to its customers, the bailors By virtue of the terms
of the bailment, the bailee agrees to act without any expectation of compensation
A bailment is created for the sole benefit of the bailee when both parties agree the property temporarily in the bailee’s custody is to be used
to his or her own advantage without giving anything to the bailor in return The loan of a book from a library is a bailment for the sole benefit of the bailee
Elements
Three elements are generally necessary for the existence of a bailment: delivery, acceptance, and consideration
Actual possession of or control over prop-erty must be delivered to a bailee in order to create a bailment The delivery of actual possession of an item allows the bailee to accomplish his or her duties toward the property without the interference of others
Control over property is not necessarily the
A library patron’s use
of library books and materials is an example of a bailment for the sole benefit of the bailee.
AP IMAGES
Trang 7same as physical custody of it but, rather, is a type of constructive delivery The bailor gives the bailee the means of access to taking custody
of it, without its actual delivery The law construes such action as the equivalent of the physical transfer of the item The delivery of the keys to a safe-deposit box is constructive delivery of its contents
A requisite to the creation of a bailment is the express or implied acceptance of possession
of or control over the property by the bailee A person cannot unwittingly become a bailee
Because a bailment is a contract, knowledge and acceptance of its terms are essential to its enforcement
Consideration, the exchange of something
of value, must be present for a bailment to exist
Unlike the consideration required for most contracts, as long as one party gives up something of value, such action is regarded as good consideration It is sufficient that the bailor suffer loss of use of the property by relinquishing its control to the bailee; the bailor has given up something of value—the immedi-ate right to control the property
Rights and Liabilities
The bailment contract embodying general principles of the law of bailments governs the rights and duties of the bailor and bailee The duty of care that must be exercised by a bailee varies, depending on the type of bailment
In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property
A bailee who fails to do so may be held liable for any damages incurred from his or herNEGLIGENCE When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is financially responsible only if
he or she has been grossly negligent or has acted
in bad faith in taking care of the property In contrast, a bailee for whose sole benefit property has been bailed must exercise extraordinary care for the property The bailee can use the property only in the manner authorized by the terms of the bailment The bailee is liable for all injuries
to the property from failure to properly care for
or use it
Once the purpose of the bailment has been completed, the bailee usually must return the property to the bailor, or account for it, de-pending upon the terms of the contract If, throughNO FAULTof his or her own, the return of the property is delayed or becomes impossible—
for example, when it is lost during the course
of the bailment—the bailee will not be held liable for nondelivery on demand or when a hurricane blows the property into the ocean
In all other situations, however, the bailee will
be responsible for the tort of conversion for unjustifiable failure to redeliver the property
as well as its unauthorized use
The provisions of the bailment contract may restrict theLIABILITYof a bailee for negligent care
or unauthorized use of the property Such terms may not, however, absolve the bailee from all liability for the consequences of his or her own
FRAUD or negligence The bailor must have notice of all such limitations on liability The restrictions will be enforced in any action brought for damages as long as the contract does not violate the law or PUBLIC POLICY Similarly, a bailee may extend his or her liability
to the bailor by contract provision
Termination
A bailment is ended when its purpose has been achieved, when the parties agree that it is terminated, or when the bailed property is destroyed A bailment created for an indefinite period is terminable at will by either party, as long as the other party receivesDUE NOTICEof the intended termination Once a bailment ends, the bailee must return the property to the bailor
or possibly be liable for conversion
FURTHER READINGS Cross, Frank B., et al 2008 West’s Legal Environment of Business: Test Cases, Ethical, Global, and E-commerce Environments Florence, KY: South-Western Duhaime, Lloyd “Bailment.” Duhaime.org Available online
at http://www.duhaime.org/LegalDictionary/A/Bailment aspx; website home page: http://www.duhaime.org (accessed August 28, 2009).
Hall, Kermit L 1996 A History of American Legal Culture: Cases and Materials 2d ed New York: Oxford Univ Press.
CROSS REFERENCES Bad Faith; Conversion; Damages; Negligence.
BAILOR One who places control over or possession of personal property in the hands of another, a bailee, for its care, safekeeping, or use, in accordance to the terms of a mutual agreement
CROSS REFERENCE Bailment.
474 BAILOR
Trang 8SeeECONOMIC BAILOUT
BAIT AND SWITCH
A deceptive sales technique that involves
advertis-ing a low-priced item to attract customers to a
store, then persuading them to buy more expensive
goods by failing to have a sufficient supply of the
advertised item on hand or by disparaging its
quality
This practice is illegal in many states under
theirCONSUMER PROTECTIONlaws
vBAKER, ELLA JOSEPHINE
Ella Josephine Baker helped found the U.S.CIVIL
RIGHTS MOVEMENT and organize three national
CIVIL RIGHTSorganizations
Baker was born in Norfolk, Virginia, on
December 13, 1903, the second of three
children of Georgianna Ross Baker and Blake
Baker Baker’s mother insisted that her children
do well in school, because she felt that they
needed an education in order to live a full life
Baker was sent to a private boarding school
from ninth grade to twelfth grade, after her
mother decided that she and her siblings were
not receiving high-quality instruction in the
public school they had been attending In 1918
Baker began studying at Shaw University, an
all-black school in Raleigh, North Carolina,
that offered high school and college-level
instruction
Baker graduated from Shaw University in
1927, ranked first in her class However, she did
not have enough money for further schooling
to become either a medical missionary or a social worker, occupations to which she had aspired Her college degree in hand, she went to New York City
While living in New York, Baker wrote articles for Harlem newspapers, including the West Indian Review Living and working in Harlem during the mid- to late 1920s, she became a part of the Harlem Renaissance, a
Ella Josephine Baker 1903–1986
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1993 561 African American elected officials in U.S and state legislatures
1986 Died, New York City
1932 Helped start nationwide program for blacks to buy co-ops
1938 Joined NAACP as assistant field secretary
1939–45 World War II
1954 Became president of NYC NAACP branch
1958 Appointed associate director of SCLC
1960 Helped found SNCC;
beginning of sit-ins and Freedom Rides
1961–73 Vietnam War
1964 Helped organize Mississippi Freedom Democratic Party; 1964 Civil Rights Act passed
1965 Voting Rights Act passed
1970 179 African American elected officials in U.S and state legislatures
1903 Born,
Norfolk, Va.
1914–18 World War I
1927 Graduated from Shaw University; moved
to New York City
1942 Promoted to director of branches for NAACP
1925
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Ella Baker.
PHOTOGRAPH FROM/
BY THE NAACP COLLECTION, PRINTS AND PHOTOGRAPHS DIVISION, LIBRARY OF CONGRESS
Trang 9period of high artistic achievement and greater awareness of the possibilities for equality, justice, and true freedom Baker participated
in political discussions with many people, all over New York City She later recalled,
“Wherever there was a discussion, I’d go It didn’t matter if it was all men, and maybe I was the only woman it didn’t matter.”
In the early days of the Great Depression, Baker was working for a Harlem newspaper along with George Samuel Schuyler, who was well known in the black community for his writing and who frequently railed against racial prejudice In one article, Schuyler proposed that African Americans set up cooperatives to purchase goods in larger quantities, at lower prices than they could get otherwise The response to this article was so positive that Schuyler decided to set up a cooperative on his own with Baker’s help Baker learned a great deal in this experience, and became an ac-knowledged expert on consumer affairs, a new idea that she helped introduce to the black community nationwide In 1935 she was hired
by the Works Progress Administration (WPA),
a group of programs set up by President Franklin D Roosevelt’s NEW DEAL, to teach people living in Harlem how to purchase the most for the little money they had
Baker worked for the WPA until 1938, when she left to become an assistant field secretary for the National Association for the Advancement
of Colored People (NAACP), the first civil rights organization established in the United States At that time the NAACP had fewer members in the South than in any other part of the United States, and most of its members were professionals—doctors, lawyers, and teachers
Baker believed that the organization had to reach the larger population of working people
in order to accomplish its tasks She targeted factory workers, household workers, and con-struction workers and tried to get them to support the NAACP By 1941, thanks to Baker and the other NAACP field staffers, the NAACP’s southern membership rolls had increased significantly
In 1942 Baker was promoted to director of branches for the organization In that position, she helped branch offices organize fund-raising and membership drives and encouraged them
to become involved in local affairs to improve the lot of black people in their communities
Through her contact with the branch offices, the organization became aware of court cases they could bring on behalf of blacks who were denied their civil rights, such as access to public institutions of higher education
In 1954 Baker was named as president of the New York City branch of the NAACP In May
of that year, the U.S Supreme Court issued its landmark decision in BROWN V BOARD OF EDUCATION, 347 U.S 483, 74 S Ct 686, 98 L
Ed 873 The Court ruled in Brown that
“separate but equal” schools for blacks and whites were unconstitutional As a result, school districts in cities across the nation had to make sure they were not violating the law Based on her experience raising her niece, Jackie, Baker believed that New York City schools were segregated, and she and other community leaders pressured city hall to examine the school system more closely for evidence of illegal
SEGREGATION The next year, the mayor of New York City asked Baker to join his newly created Commission on School Integration
To present the commission’s findings to parents of schoolchildren, Baker set up meet-ings around New York City When she found that many parents were deeply concerned over the quality of their neighborhood schools, Baker encouraged them to petition the school board to allow their children to attend schools
of their own choosing In response to the petitions, New York developed one of the first open-enrollment plans for public schools Open enrollment allowed public school students to attend schools outside their own neighbor-hoods, without requiring them to change their residency or pay extra tuition or transportation costs
A new chapter in the civil rights movement began when ROSA PARKS refused to give up her seat on a Montgomery, Alabama, bus on December 1, 1955 In Montgomery black passengers could sit only in the back of the bus, behind the first ten rows of seats Whites could sit in the black section of the bus, but when they did, a black person could not sit next
to or in front of a white person And black people could be forced to give up their seats if a white person had no place to sit
Parks was an officer of the NAACP’s Montgomery branch and had worked with Baker on the NAACP’s Leadership Conference,
a program designed to help local members
STRONG PEOPLE
DON’T NEED STRONG
LEADERS
—E LLA B AKER
476 BAKER, ELLA JOSEPHINE
Trang 10develop their leadership skills In support of
Parks, leaders of Montgomery’s black
commu-nity, including Dr MARTIN LUTHER KING Jr.,
organized a boycott of the Montgomery bus
system The boycott lasted from December 1,
1955, until December 20, 1956, when blacks in
Montgomery heard that the U.S Supreme
Court had ruled on December 17 that
Montgomery’s bus segregation laws were
unconstitutional (Gayle v Browder, 352 U.S
903, 77 S Ct 145, 1 L Ed 2d 114[Nov 13,
1956], reh’g denied, 352 U.S 950, 77 S Ct 323, 1
L Ed 2d 245)
After the success of the MONTGOMERY BUS
BOYCOTT, Baker and others eventually convinced
King to call a meeting of southern black leaders
to plan to extend the battle The meeting King
called was to take place in Atlanta on January
11, 1957 The evening before, several locations
in Montgomery were bombed, including
homes of white and black supporters of the
civil rights movement King and the Rev.RALPH
D ABERNATHY, whose home was one of those
bombed, left the meeting to investigate the
incidents Baker and an associate stayed in
Atlanta to manage the conference with Coretta
Scott King and the Rev Fred L Shuttlesworth
This meeting was the beginning of theSOUTHERN
CHRISTIAN LEADERSHIP CONFERENCE (SCLC), an
umbrella organization for groups fighting for
civil rights
One of the SCLC’s first nationwide efforts
was the Crusade for Citizenship, a voter
registration program By September 1959, when
the organization had not motivated masses of
African Americans to register, Baker proposed
three changes that she believed would result in a
stronger organization The first suggestion was
to create an overarching plan to coordinate the
activities of SCLC member groups The second
was to actively develop the leadership skills of
people in the member organizations who had
demonstrated abilities in that area The third
was to organize black southerners to fight every
form of discrimination by using mass action
and nonviolent resistance
One method of nonviolent resistance, the
sit-in, was used as early as 1942 by a civil rights
organization called the Congress of Racial
Equality (CORE) to protest racial
discrimina-tion Not until 1960, however, were sit-ins
widely used as a form of protest In February
1960, four black students sat at the lunch
counter in a Woolworth’s store in Greensboro,
North Carolina They were refused service, because it was a “whites-only” lunch counter, but remained seated until the store closed for the day News of the incident spread quickly, and area high school and college students joined them in the following days By the end of March, students had staged sit-ins in many other southern cities Baker realized that although the sit-ins were generating publicity for the civil rights movement, their influence would be greater if they were better coordinated,
so in April 1960 Baker organized a conference for student civil rights activists at Shaw University More than 300 students attended the meeting, which was the genesis of the
STUDENT NONVIOLENT COORDINATING COMMITTEE
(SNCC) Among those attending were Marion Barry, future mayor and future city council member of Washington, D.C., and Julian Bond, future Georgia legislator
Baker resigned from the SCLC and became SNCC’s adviser and organized its main office
SNCC developed a unique, separate identity within the civil rights movement because of Baker’s style of leadership Baker believed that everyone in an organization should lead it, so she made sure that everyone in attendance at meetings stated an opinion, and that no other single civil rights leader or organization, includ-ing the NAACP and Kinclud-ing, directed the activities
of the committee When SNCC nearly split apart over whether to pursue direct action (such
as the Montgomery bus boycott and the Greensboro sit-ins) or voter registration, Baker suggested that the organization could do both, setting the stage for the 1961 Freedom Rides
The Freedom Rides were begun in 1961 as a response to a 1960 ruling, Boynton v Virginia,
364 U.S 206, 81 S Ct 182, 5 L Ed 2d 206, in which the Supreme Court decided that inter-state buses and trains, and the facilities in the terminals that served them, could not constitu-tionally remain segregated The ruling was flagrantly ignored throughout the South The Freedom Riders, who were both black and white, intended to stop the segregation by traveling together along the routes where segregated facilities were located The Freedom Rides drew the attention of the Congress, which began debate on a civil rights bill in the summer
of 1963 The 1964 Civil Rights Act, as the bill was called, was finally passed on July 2, 1964, guaranteeing African AmericansEQUAL PROTECTION
in the use of hotels, restaurants, and other public