December 2002/January 2003 Newsletter

POINT OF LAW

As a public service, the Illinois State Bar Association offers Point of Law announcements that are often heard on local radio stations. These can be used to generate discussion in classrooms or in public forums.

ALCOHOL AND DRIVING ARE A BAD LEGAL MIX

Everyone knows that drinking and driving don't mix. But a non-drinking driver may also be prosecuted if a passenger in the car is drinking alcoholic beverages. The charge is illegal transportation of liquor. The law requires that any alcoholic beverages transported in the passenger area of a motor vehicle must have the seal unbroken. Thus alcoholic beverages on which the seal is broken may only be transported in parts of a motor vehicle other than the passenger area. The trunk is one of these places, and since it is unlawful for passengers to ride in a trailer when the vehicle is underway, unsealed alcoholic beverages may also be transported there.

OUT-OF-STATE CHILD CUSTODY

The Court's job of awarding custody of minor children in a dissolution of marriage is determined with the best interest of the child in mind. If you have been awarded custody and later want to move to another state, you must petition the court for permission to permanently remove minor children from the state. Under Illinois law the court may grant such permission to you, but you will have to demonstrate that such a move would continue to be in the best interest of the child. The court may consider several other factors, including visitation rights of the parent not having custody.

PAYROLL WITHHOLDING FOR CHILD SUPPORT

Divorce and child support have become a way of life for many families. Failure to maintain child support payments is forcing many children to live in households below the poverty level. However, timely payments can be enforced. If the parent obligated to pay child support falls behind in making payment, the court may request that person's employer to withhold the support directly from his or her paycheck. In order to do this, the custodial parent must obtain a court order by filing a form with the circuit court.

For additional help, the Illinois Department of Human Services offers free legal representation to enforce child support orders.

ORGAN TRANSPLANTS AND THE LAW

In legal language, it is known as an anatomical gift, most people know it as leaving one's body to science or donating vital organs for the purpose of transplant. In the interest of sustaining life, the law says that in the absence of instructions in a will or other document, surviving members of a family may donate all or part of a relative's body for medical research or transplants. In order of their authority, those who can exercise this right are the surviving spouse, adult children, parents, adult siblings or the legal guardian. If only one family member decides against it, the donation cannot be made.

SPLICING INTO A CABLE TV SYSTEM CAN BE TROUBLE

Your choice of what TV programs to watch is of course, a free choice. If you want to expand your TV viewing the answer might be found through the use of cable television. You should be aware, however, that cable TV is not free but a service that must be paid for. While it may be tempting to splice into existing cable TV apparatus, such actions are illegal without proper authorization or payment to the operator of a cable TV system. Under Illinois law the punishment of such a crime is imprisonment up to one year, a fine of $2,500 or even more sever penalties.

MONEY IN THE BANK

Do you ever wonder how soon the money you deposit in the bank will be credited to your account and available to cover checks? By law, banks are allowed to set a cut-off hour of 2:00 p.m. or later for the handling of money and for making entries on their books. A deposit to your account before 2:00 in the afternoon will be treated as a same-day transaction and posted to your account in the following day. The law allows banks to treat deposits made after the cut-off hour as having been received at the opening of the next banking day, which could delay the crediting to your account until at least two days after the actual deposit. If in doubt, check with your bank about cut-off policies.

YOU SAY YOU DON'T HAVE A WRITTEN LEASE AND YOUR LANDLORD WANTS TO EVICT YOU . . .

It is usually best for both landlord and tenant to have a written agreement on the terms of a lease. But even if you don't have a written lease on your apartment, you still have an agreement with your landlord that will affect the landlord's ability to evict you. This unwritten agreement is based on your schedule of paying rent. Generally speaking, this means that if you are not behind in your rent, then the landlord must provide you with advance written notice before eviction can take place. For instance, you are entitled to seven days' notice if you pay by the week and thirty days' notice if you pay by the month.

SHOPLIFTING IS A SERIOUS CRIME

Each year thousands of people yield to the temptation to shoplift and each year thousands of people are arrested for it. By law, it is considered shoplifting when a person takes merchandise without paying for it or when a person alters or switches a price tag on merchandise. Depending on the offender's prior record, a conviction for shoplifting can mean a jail sentence up to five years and a fine of $10,000. In addition, a merchant can sue the shoplifter to recover the full value of the stolen goods, attorneys' fees, and court costs.

2003 HIGH SCHOOL MOCK TRIAL MATERIALS AVAILABLE

The 2003 Illinois State Bar Association High School Mock Trial materials have been mailed to schools across the state. They are also available, along with the rules and registration materials, at www.isba.org. Follow the links to "Committees" in the blue column on the left and find "Committee on Law-Related Education." Click on that icon and you will find the mock trial materials and a wealth of other information you can use in classrooms and public discussions on the law.

This year's mock trial problem is based in history. In 1841, Abraham Lincoln wrote a letter to a friend discussing a situation that had occurred in the Springfield community. Using this letter as background, the Committee on Law-Related Education crafted witness affidavits for six individuals. High School students from across Illinois will meet in Springfield on March 21 and 22 to present their cases. Mr. Lincoln's letter appears below. There's a twist though. The students will have access to this information, but may not use the letter or refer to its contents during the trials.

Springfield

June 19, 1841

Dear Speed:

We have had the highest state of excitement here for a week past that our community has ever witnesses; and although the public feeling is somewhat allayed, the curious affair which aroused it is very far from being over, yet cleared of mystery. It would take a quire of paper to give you anything like a full account of it, and I therefore only propose a brief outline. The chief personages in the drama are Archibald Fisher, supposed to be murdered; and Archibald Trailor, Henry Trailor, and William Trailor, supposed to have murdered him. The three Trailors are brothers: the first, Arch, as you know, lives in town; the second, Henry, in Clary's Grove; and the third, William, in Warren County; and Fisher, the supposed murdered, being without a family, had made his home with William.

On Saturday evening, being the 29th of May, Fisher and William came to Henry's in a one-horse dearborn and there staid over Sunday, and on Monday all three came to Springfield (Henry on horseback) and joined Archibald at Myres', the Dutch carpenter. That evening at supper Fisher was missing, and so next morning some ineffectual search was made for him; and on Tuesday at 1 o'clock p.m., William and Henry started home without him. In a day or two Henry and one or two of his Clary's Grove neighbors came back for him again, and advertised his disappearance in the papers.

The knowledge of the matter thus far had not been general, and here it dropped entirely till about the 10th inst., when Keys received a letter from the postmaster in Warren county that William had arrived home and was telling a very mysterious and improbable story about the disappearance of Fisher, which induced the community there to suppose he had been disposed of unfairly. Keys made this letter public, which immediately sent the whole town and adjoining country agog. And so it has continued until yesterday. The mass of the people commenced a systematic search for the dead body, while Wickersham was dispatched to arrest Henry Trailor at the Grove and Jim Maxcy to Warren county, to arrest William.

On Monday last, Henry was brought in and showed an evident inclination to insinuate that he knew Fisher to be dead and thatArchieand William had killed him. He said he guessed the body could be found in Spring creek between the Beardstown road and Hickox's mill. Away the people swept like a herd of buffalo to cut down Hickox's mill-dam nolens volens to draw the water out of the pond, and then went up and down and up the creek fishing and raking and raking and ducking and diving for two days, and after all no dead body found. In the meantime a sort of scuffling ground had been found in the brush, in the angle or point where the road leading into the woods past the brewery and the one leading in past the brick grove meets. From the scuffle ground was the sign of something about the size of a man having been dragged to the edge of the thicket where it joined the track of some small wheel carriage drawn by one horse, as shown by the road tracks. The carriage track led off toward Spring creek. Near this drag trail, Dr. Merryman found two hairs which, after a long scientific examination, he pronounced to be triangular human hair, which term he says includes within it the whiskers, because the ends were cut, showing that they had flourished in the neighborhood of the razor's operations.

On Thursday last, Jim Maxcy brought William Trailor from Warren. On the same dayArchiewas arrested and put in jail. Yesterday (Friday) William was put upon his examining trial before May and Lavely. Archibald and Henry were both present. Lamborn prosecuted, and Logan and Baker and your humble servant defended.

A great many witnesses were introduced and examined, but I shall only mention those whose testimony seems most important. The first of these was Capt. Ransdell. He swore that when William and Henry left Springfield for home, on Tuesday before mentioned, they did not take the direct route which you know leads by the butcher shop, but that they followed the street north until they got opposite or nearly opposite May's new house, after which he could not see them from where he stood; and it was afterwards provided that in about an hour after they started, they came into the street by the butcher shop from towards the brickyard. Dr. Merryman and others swore to what is stated about the scuffle ground, drag trail, whiskers, and carriage tracks.

Henry was then introduced by the prosecution. He swore that when they started for home, they went out north, as Ransdell stated, and turned down west by the brickyard into the woods and then met Archibald; that they proceeded a small distance farther, when he was placed as a sentinel to watch for and announce the approach of any one that might happen that way; that William and Archie took the dearborn out of the road a small distance to the edge of the thicket, where they stopped and he saw them lift the body of a man into it; that they then moved off with the carriage in the direction of Hickox's mill, and he loitered about for something like an hour, when William returned with the carriage but without Arch, and said they had put him in a safe place; that they went, somehow, he did not know exactly how, into the road close to the brewery and proceeded on to Clary's Grove.

He also stated that some time during the day William told him that he and Archie had killed Fisher the evening before; that the way they did it was by him (William) knocking him down with a club and Archie choking him to death.

An old man from Warren called Dr. Gillmore was then introduced on the part of the defense. He swore that he had known Fisher for several years; that Fisher had resided at his house a long time at each of two different spells once while he built a barn for him, and once while he was doctored for some chronic disease; that two or three years ago Fisher had a serious hurt in his head by the bursting of a gun, since which he had been subject to continued bad health and occasional aberration of mind. He also stated that on last Tuesday, being the same day that Maxey arrested William Trailor, he (the doctor) was from home in the early part of the day and on his return, about 11 o'clock, found Fisher at his house in bed and apparently unwell; that he asked him how he had come from Springfield; that Fisher said he had come by Peoria and also told of several other places he had been at, more in the direction of Peoria, which showed that he at the time of speaking did not know where he had been wandering about in a state of derangement.

He further stated that in about two hours he received a note from one of Trailor's friends advising him of his arrest and requesting him to go on to Springfield as a witness to testify as to the state of Fisher's health in former times, that he immediately set off, calling up two of his neighbors as company, and riding all evening and all night overtook Maxcy and William at Lewistown, in Fulton county; that Maxcy refusing to discharge Trailor upon his statement, his two neighbors returned and he came on to Springfield.

Some question being made as to whether the doctor's story was not a fabrication, several acquaintances of his (among whom was the same postmaster who wrote to Keys as before mentioned) were introduced as sort of compurgators, who swore that they knew the doctor to be of good character for truth and veracity and generally of good character in every way. Here the testimony ended and the Trailors were discharged, Archie and William expressing, both in word and manner their entire confidence that Fisher would be found alive at the doctor's by Calloway, Mallory, and Myres, who a day before had been dispatched for that purpose; while Henry still protested that no power on earth could ever show Fisher alive.

Thus stands this curious affair. When the doctor's story was first made public, it was amusing to scan and contemplate the countenances and hear the remarks of those who had been actively engaged in the search for the dead body. Some looked quizzical, some melancholy, and some furiously angry. Porter, who had been very active, swore he always knew the man was not dead and that he had not stirred an inch to hunt for him. Langford, who had taken the lead in cutting down Hickox's mill-dam and wanted to hang Hickox for objecting, looked most awfully woebegone; he seemed the "wictem of hunrequited affection," as represented in the comic almanacs we used to laugh over. And Hart, the little drayman that hauled Molly home once, said it was too damned bad to have so much trouble and no hanging after all.

I commenced this letter on yesterday, since which I received yours of the 13th. I stick to my promise to come to Louisville. Nothing new here except what I have written. I have not seen Sarah since my last trip and I am going out there as soon as I mail this letter.

Yours forever, A. Lincoln

MATERIALS AVAILABLE!

The Illinois State Archives has issued the sixth in a series of teaching packets that are designed to encourage use of archival documents in classrooms. Teaching packets include a teacher's manual and a set of photographic reproductions of documents in the Illinois State Archives. Teaching packets in the series include Hard Times in Illinois, 1930–1940; The Illinois and Michigan Canal, 1827–1911; Illinois at War, 1941–1945; From the Ashes, 1872–1900; and Early Chicago, 1833–1871. For information, contact the Illinois State Archives, 217/782-2226 or go to http://www.sos.state.il.us/departments/archives/docpacks.html

AMERICAN BAR ASSOCIATION PHOTO CONTEST HELPS CELEBRATE LAW DAY

The American Bar Association is, once again, holding a photo competition for students aged 12 to 18. The Law Day theme for 2003 is "Images of Freedom." The photo competition theme is INDEPENDENT COURTS PRESERVE OUR LIBERTIES. Prizes include $1000 in cash and a trip to Washington, DC to receive it. To request a copy of this year's Images of Freedom brochure, which describes the contest, call 312/988-5735, or e-mail abapubed@abanet.org Entry forms are also available on-line at www.abanet.org/publiced/imagescontest.

FAVORITE CIVICS WEBSITES

Favorite websites for civics and law-related education. If you have another not already listed, please feel free to e-mail the website to dschecht@isba.org.

www.landmarkcases.org

www.streetlaw.com

www.crfc.org

http://www.abanet.org/publiced/lre/main.html

www.civiced.org

http://www.nytimes.com/learning/teachers/index.html?8qa

http://www.justicelearning.org/

www.classroom.net/resource

www.c-span.org/classroom/

www.pbs.org/wgbh/pages/frontline

www.teachingdemocracy.org

www.findlaw.com

LESSON PLAN AVAILABLE ON GIDEON

In 2003, American will celebrate the 40th anniversary of the U.S. Supreme Court's landmark decision in Gideon v. Wainwright, in which a poor Florida prisoner caused the single biggest change in the history of the U.S. criminal justice system. Before Gideon, persons accused of crime could be sent to prison without any representation by a lawyer unless they were wealthy enough to hire one. The Gideon decision guaranteed that all persons accused of a felony are entitled to appointed counsel.

To help educate students about the significance of the Gideon decision and the constitutional right to counsel, the National Association of Criminal Defense Lawyers (NACDL) has developed a lesson plan for high school history, civics, government, and social studies classes (easily adaptable for middle school classes). To download the lesson plan, go to www.nacdl.org/gideon. On the website, you will also find other resources on Gideon and the right to counsel. Teachers are encouraged to use the lesson throughout 2003 as part of a national focus on the Gideon anniversary.

If you have any questions, please contact Kate Jones, NACDL Indigent Defense Counsel at (202) 872-8600 x224 or kate@nacdl.org.

National Association of Criminal Defense Lawyers

1150 - 18th Street, N.W., Suite 950, Washington, D.C. 20036

CRADLE LESSON PLAN NO. 71517A

Honeymoon in Jail: The Fourteenth Amendment

Created by Phyllis Bundy, Wilson Middle School, Albuquerque, New Mexico

LESSON OVERVIEW - Throughout the history of the United States, questions of

interracial "mixing" have been and remain controversial. Antimiscegenation laws not only survived the Civil War, but were kept and enforced in many states until the Loving v. Virginia case was brought before the United States Supreme Court in 1 967. This lesson provides students with the opportunity to review laws on racial marriages with the state of Virginia as an example, and the landmark decision prohibiting illegal prevention of individuals from marrying whom they choose.

OBJECTIVES

• To familiarize students with Fourteenth Amendment rights.
• To increase awareness of legal perspectives on interracial marriage in U.S. history.
• To develop critical thinking skills.

GRADE LEVEL - Middle School

TIME - Two to three class periods

MATERIALS

Handout 1 LOVING v. VIRGINIA (1967)

Handout 2 Counsel for Petitioners

Handout 3 Counsel for Respondents

Handout 4 Decision

PROCEDURE - Introduce the lesson by discussing the concept of arranged marriages (i.e. in India, China, etc). Ask how students would feel if they had no voice in the selection of a marriage partner, and their feelings if they were told they could not marry who they wanted under penalty of imprisonment. Explain that this situation occurred in the United States as late as the 1960s.

Distribute and read through Handout 1: LOVING v. VIRGINIA. Ask students for the facts in the case and record responses on the board. Ask for the legal issues involved. Students may need some assistance determining between "fact" and "issue". Divide

the class into groups of three. One student from each group will be the judge, one will represent the Lovings, and one will represent the Virginia State Attorney General's office. Allow time for student attorneys to build a case to be argued before the student judge. At the conclusion, judges should give their rulings and basis for their decisions.

Distribute Handout 4 and read through with the class.

BIBLIOGRAPHY - Irons, Peter and Guitton, Stephanie. May It Please The Court... New Press, New York, 1993

LOVING v. VIRGINIA 388 U.S. (1967)

Schuhmann, George. "Miscegenation: An Example of Judicial Recidivism", Journal of Family Law 8, No. l (Spring 1968) Wadlington, Walter. "The Loving Case: Virginia's

Antimiscegenation Statute in Perspective", VIRGINIA LAW REVIEW 52, No. 7 (November 1966): 1189

* * * * *

Distributed by the Center for Research and Development in Law-Related Education, Wake Forest University School of Law, 2714 Henning DR, Winston-Salem NC 27106; 1-800-437-1054.

HANDOUT 1 - LOVING v. VIRGINIA (1967)

Richard Loving, an Anglo, married Mildred Jeter, a woman of Native American and African heritage in 1958 in Washington, D.C. The couple chose to live in Caroline County, Virginia where they had both grown up.

Six weeks after the Lovings married they were awakened in the middle of the night by the sheriff, who had a warrant for their arrest. The Lovings spent five days in jail. They had violated a Virginia law prohibiting interracial marriage, which said that each was guilty of a felony and would face five-year prison terms.

Virginia's law banning interracial marriages dated back to 1691 when slaves were an important part of the economy and the slave society. Similar laws survived the Civil War in most Northern and Southern states. Thirty-one states kept antimiscegenation laws even after World War II. These laws were still enforced in sixteen border and southern states in 1958 when the Jeters married.

To avoid prison, the Lovings pleaded guilty. Judge Leon Bazile suspended a one-year prison sentence if the couple agreed to leave the state of Virginia for twenty-five years. The Lovings moved to Washington, D.C., but had too much difficulty trying to adjust to city life, so they move back to Caroline County and lived as fugitives for nine years. Friends and family hid them as they tried to raise three small children.

In 1963 Richard Loving appealed to the United States Attorney General, Robert Kennedy. Kennedy in turn sent the letter to the American Civil Liberties Union. The ACLU enlisted to help of two Virginia lawyers, Bernard Cohen and Philip Hirschkop. Several church and civil groups supported the appeal as friends of the Court.

Counsel for the respondent was R.D. McIlwaine III, of Richmond, Virginia. He represented the State Attorney General's office. Virginia's laws against interracial marriages were revised in 1924. These included registration laws making certificates of ethnicity mandatory. When originally issued, this bit of legislation was entitled "A Bill to Preserve the Integrity of the White Race". Basically the law was only concerned with supremacy and integrity of whites, as there were no restrictions on people of color or ethnicity intermarrying with each other, only intermarrying with whites.

HANDOUT 2 - PETITIONER

Hirschkop and Cohen argued before the Court that the Lovings' Fourteenth Amendment guarantee of equal protection was violated, as the laws applied to Americans of all races. Hirschkop pointed out that according to Virginia law, only whites were banned from marrying someone of color. Individuals of other races were not. The Lovings' right of due process was violated, as the freedom to marry who one chooses was denied.

HANDOUT 3 - RESPONDENT

Counsel for the respondent argued that the state was merely upholding its statute, and was not in violation of the Fourteenth Amendment as the Petitioner suggested. He argued that because of its legislative history, this Amendment had no effect of the power of the states to enact miscegenation laws. The second contention by Virginia was that it had the right to express its legislative objective to prevent psychological and social problems brought about by interracial marriages.

HANDOUT 4 - DECISION: LOVING v. VIRGINIA

Chief Justice Earl Warren spoke for the Court. The decision was unanimous in favor of the Lovings. Virginia's law against interracial marriages violated the Fourteenth Amendment on two grounds. The antimiscegenation law violated the due process clause, protecting the right of liberty, which includes the freedom to marry without racial restrictions. The equal protection clause also was violated, since it bans racial laws serving no "permissible state objective". Under the Constitution, the freedom to-or not to-marry between people regardless of race or religion resides with the individual. This decision cannot be infringed upon by the State.