Latest / WCHS Network Podcasts / 03/05/2026 Ask the Lawyer with Tom Peyton

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03/05/2026 Ask the Lawyer with Tom Peyton · WCHS Network Podcasts

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Speaker 1: The views and opinions expressed on this program do not
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Speaker 1: necessarily reflect the views and opinions of five eight whs
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Speaker 1: it's employees or WVRC media.
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Speaker 2: Of course, Oh creagent equal.
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Speaker 3: Well nice, come here and a Katon can rock SAPs.
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Speaker 4: You can put the law on your side this morning.
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Speaker 4: The Peyton Law Firm is in studio. Tom Peyton is
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Speaker 4: here for you this morning. Three zero four three four
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Speaker 4: five fifty eight fifty eight is our phone number for
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Speaker 4: you to get on the air. Three zero four three
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Speaker 4: four five fifty eight fifty eight. You can text three
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Speaker 4: zero four non three five five zero zero eight online
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Speaker 4: Payton Lawfirm dot com. Tom, Good morning, How you doing
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Speaker 4: this morning?
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Speaker 2: I am doing great? How are you?
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Speaker 1: Dale?
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Speaker 4: Doing very well? I keep on hearing about this these
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Speaker 4: eighty degree days that we're going to have tomorrow and Saturday,
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Speaker 4: and I guess I'm sort of looking forward to those.
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Speaker 2: Yeah, it's gonna be nice. Spring is around the corner.
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Speaker 4: Yeah, it's it's definitely, it's definitely coming. And well it
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Speaker 4: always it seems to me. The we have the girls
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Speaker 4: state basketball tournament the starting next week, the boys tournament
1:08
Speaker 4: after that. That's sort of for me and radio is
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Speaker 4: the beginning of spring. It seems like that that's sort
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Speaker 4: of when we get our spring programming ready, when things
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Speaker 4: like that kind of start rolling in. So yeah, I
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Speaker 4: feel I feel the spring coming.
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Speaker 2: Yeah, I've got a date always remember because my wife's
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Speaker 2: birthday on March eleventh. So I'll sure early happy birthday
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Speaker 2: because I won't be here next week. Dad'll be here,
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Speaker 2: but she turns the next week, and so you know,
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Speaker 2: we always try and do something on her birthday and
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Speaker 2: so outdoors if we can. She'll always kind of keep
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Speaker 2: that date in your head. And had a lot of
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Speaker 2: seventy degree days on March eleventh over the years, and
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Speaker 2: looking forward to spring. Goodwin. I'm a hot weather person.
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Speaker 2: I'd rather have it ninety five degrees and forty five
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Speaker 2: degrees every day.
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Speaker 4: Yeah, I'm right, I'm right there with you as far
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Speaker 4: as that goes.
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Speaker 2: So we got some interesting goings on here in the
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Speaker 2: federal court system, talking about our intro song, don't uh
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Speaker 2: fight the law, But we've got some interesting parties fighting
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Speaker 2: each other legally anyway, not physically, of course, but uh,
2:10
Speaker 2: interesting development over the last week or two. So the
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Speaker 2: you know, Chris Warner's are the West Junior Secretary of
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Speaker 2: State is his brother, I think Mac before him, and
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Speaker 2: and Chris Warner is certainly uh as a reputations as
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Speaker 2: a very conservative political person, I think gosh, I think
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Speaker 2: even he was at one of these I don't know,
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Speaker 2: protests or gatherings about the twenty twenty election, maybe not
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Speaker 2: being legitimate or something which I thought was inappropriate for
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Speaker 2: a I don't think he was sec Secretary of State at
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Speaker 2: that time. He might have been Secretary of State. But anyway,
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Speaker 2: point B and he's he's certainly not you know, he's
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Speaker 2: he's generally on Donald Trump's side on issues and and
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Speaker 2: and that seems to be what his constituents want here
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Speaker 2: in in West Virginia. But but now they're buttonheads. So
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Speaker 2: we've got there's been a push by the Department of Justice.
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Speaker 2: I think they're relying on the Civil Rights Act to
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Speaker 2: say they need to get voter data from Secretary of
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Speaker 2: State's office. We're all, you know, they control voter registration
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Speaker 2: and and things like that, and Secretary of State Warner's
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Speaker 2: office has resisted that. I think there was a request
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Speaker 2: last fall, and then one of Attorney General's assistant Attorney
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Speaker 2: generals wrote back and said, no, we can't provide that information,
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Speaker 2: but we'll cooperate the best we can. And so there's
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Speaker 2: there's particular information that anybody can access. I mean you
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Speaker 2: can human can do a fuya I guess and get
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Speaker 2: voter registration information, but there's certain personal identifiers that are
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Speaker 2: specifically excluded from disclosure under our state law, and like
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Speaker 2: SOB security numbers, any part of the SoC security number
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Speaker 2: or telephone numbers. I think maybe even particular addresses some
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Speaker 2: other data. And so I guess the Department of Justice
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Speaker 2: kept pushing for it, and he Secretary of State. Our
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Speaker 2: Secretary of State resisted again and wrote back, you know,
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Speaker 2: reiterating we can't release this information, but will cooperate the
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Speaker 2: Department of Justice. I think I sorted then that you
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Speaker 2: know they they need it to make sure, you know,
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Speaker 2: this alleged election fraud which is not based in reality
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Speaker 2: or evidence, uh that that is widespread or occurring any
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Speaker 2: more than a little bit you would expect in any
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Speaker 2: large enterprise or system. But they were The Department Justice
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Speaker 2: basically said, well, we want to use that information to
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Speaker 2: cross reference for our immigration whatever the immigration law is.
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Speaker 2: It's got an acronym, and Secretary of Warner's office pointed
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Speaker 2: out through the use Attorney in General that we already
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Speaker 2: do that, we already cross reference to that now actually
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Speaker 2: not necessarily all of them under his tenure. I think
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Speaker 2: some under his tenure, but its predecessor, his brother. They've
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Speaker 2: they've actually cleaned up the voter rolls in West Vinia
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Speaker 2: by the tune of like four hundred thousand, which is
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Speaker 2: significant when I think we have one point two million
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Speaker 2: people registered to vote. It doesn't mean four hundred thousand
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Speaker 2: people were out there voting. It's just the roles hadn't
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Speaker 2: been cleaned up, so you would have people that pass away,
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Speaker 2: for example, that don't get taken off the voter rolls.
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Speaker 2: But that in no way means, and it wasn't happening
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Speaker 2: four hundred thousand people voting that weren't supposed to be voting.
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Speaker 2: Any system that large, you're going to have some kind
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Speaker 2: of error rate. It's just the evidence is that it's
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Speaker 2: insignificant and doesn't change the result of elections, and certainly
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Speaker 2: didn't change the result of the twenty twenty election. But
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Speaker 2: now it's gone to the next step. So the federal
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Speaker 2: government has now filed a lawsuit against Secretary multiple states.
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Speaker 2: I think there's twenty nine states that have resisted this request,
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Speaker 2: and so now we will see how it plays out.
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Speaker 2: It's in it's filed in the Southern District Court, federal
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Speaker 2: Court here in Charleston. I'm not sure which judge has
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Speaker 2: been assigned to it. It's just filed last week, I believe.
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Speaker 2: So we'll kind of monitor that one and see how
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Speaker 2: it plays out. I think the Feds are going to
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Speaker 2: be on the losing end of that one. I think
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Speaker 2: it's again, you know, stretching federal statutes and federal law
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Speaker 2: that's been on the books for decades. Stretching meaning attempting
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Speaker 2: to apply provisions of law that in a way that
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Speaker 2: have never been applied before, and stretching definitions and things
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Speaker 2: like that. So we'll see, but it's going to come
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Speaker 2: to fruition. So we'll kind of monitor that one and
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Speaker 2: see how it comes out. I'm sure most listeners don't
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Speaker 2: want their personal data turned over to the especially with
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Speaker 2: what's going in these days with and when they're using
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Speaker 2: AI and things like that that have significant error rates
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Speaker 2: to identify, detain, and arrest people. So we'll we'll we'll
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Speaker 2: keep monitoring that one, but kudo's to Secretary. I mean,
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Speaker 2: we don't. I don't view many things he does. I mean,
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Speaker 2: I don't agree with a lot of his political opinions,
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Speaker 2: but it seems like he's doing a good job as
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Speaker 2: Secretary of the State and h and he's resisting this
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Speaker 2: moved by the FEDS when it would be easier for
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Speaker 2: him just to relent and then throw out a headline
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Speaker 2: and a press release that he's now cooperating with President
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Speaker 2: Trump to you.
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Speaker 4: Know, as someone that's kind of a commoner sitting out
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Speaker 4: on these things. And I was in the Fourth Amendment
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Speaker 4: space for a while where I did some white activism
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Speaker 4: back into two thousands, like around Patriot Act time and
7:52
Speaker 4: stuff like that. I follow this thing a little bit.
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Speaker 4: And the thing that really concerns me with a lot
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Speaker 4: of these stories, it's not just the voter role. It's
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Speaker 4: also license plate gathering, uh, purchasing from data brokers. You know,
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Speaker 4: the whole thing with with TikTok. You know, the Chinese
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Speaker 4: governments taking your data. That may have been true, but
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Speaker 4: the US government can purchase that data from third party
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Speaker 4: data brokers in the United States with no legal ramifications
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Speaker 4: at all. So they're getting that same data here locally, Uh,
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Speaker 4: the information that was taken from Social Security Office when
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Speaker 4: the government of the sent the people, the Elon Musk
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Speaker 4: people in at the ending of the year and they
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Speaker 4: downloaded all that data and it went somewhere. So we're
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Speaker 4: talking about massive reservoirs of of of data on citizens
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Speaker 4: from Social Security Office, from voter registration rules, from from
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Speaker 4: surveillance cameras, from tracking uh license plates. This feels very bad.
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Speaker 2: As you know, data is has monetary value. Yeah, for sure,
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Speaker 2: data that others do not have access to. Companies want
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Speaker 2: that because it allows them to go, for sure, get
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Speaker 2: leads and assess their customer base and market their products.
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Speaker 4: Well, I mean there's even things going on now where
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Speaker 4: you know, for years they said that, for example, you
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Speaker 4: and I are talking about, you know, what bathroom towels
9:19
Speaker 4: are wives bought or whatever, and then you're driving home
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Speaker 4: and you get to your house and you open up
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Speaker 4: your phone and suddenly you have an advertisement for those
9:26
Speaker 4: towels that are on your Facebook scroll or whatever. For years,
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Speaker 4: these companies said that, oh, well, that's just really that's
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Speaker 4: really high level work being done by the metadata. Because
9:37
Speaker 4: you and I shared space together and our phone location
9:40
Speaker 4: data pick that up, and it picks up that we
9:43
Speaker 4: share so much time together over a course of time,
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Speaker 4: and so it would assume that maybe our spouses have
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Speaker 4: similar interests, and so it would surface something that we
9:50
Speaker 4: talked about. And it's just confirmation bias that you see
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Speaker 4: this ad on airs like, oh, we just talked about this.
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Speaker 4: The phone must have been listening to us for years.
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Speaker 4: The companies came out and said, eah, that wasn't the case. Well,
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Speaker 4: now it's turns out that Amazon and Google and all
10:02
Speaker 4: these companies were being sued because it turns out that yes,
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Speaker 4: they were listening to your conversations during all these times,
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Speaker 4: recorded snips of the conversations and put those in storage somewhere.
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Speaker 4: I'm just saying that conversations that you once thought were private,
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Speaker 4: if we keep going down this road, suddenly all of
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Speaker 4: those archives are also going to be part of this
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Speaker 4: data sweep, and every conversation that you've ever had in
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Speaker 4: front of one of these phones, one of these devices,
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Speaker 4: or something else might be up for perhaps.
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Speaker 2: Yeah, you would think you could see this coming. Certainly
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Speaker 2: the computer people should have seen it coming, and you
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Speaker 2: would think by now we would have anticipating that and
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Speaker 2: foreseeing that there would be a whole government agency created
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Speaker 2: to address AI and things like you're talking about. Certainly
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Speaker 2: it happens. I mean it happens all the time now
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Speaker 2: on my Facebook feed or whatever. I'll talk about something,
10:52
Speaker 2: or if you happen to search something on giog or
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Speaker 2: whatever database, it's instantly pop up at. But it was
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Speaker 2: probably five years ago when I first noticed that I
11:02
Speaker 2: said the word butterfinger one time I was going in
11:04
Speaker 2: we were traveling to get something to eat a Gindy Bard.
11:06
Speaker 2: I hadn't said the word butterfinger in years. There it
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Speaker 2: is popped up on an ad very within ten minutes.
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Speaker 2: Hey we got a call.
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Speaker 4: Yeah, we got to call it. So that's one of
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Speaker 4: the one we're bringing it on. Without taking your name,
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Speaker 4: fir Us, what's your first name, caller Charles? Well, what's
11:20
Speaker 4: what's your question for for Thomas Charles?
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Speaker 5: Yeah, Tim in going to court, if if you're just
11:29
Speaker 5: gonna go plead guilty, would you need a court appointed lawyer?
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Speaker 2: Well, it doesn't. First of all, if you have a
11:38
Speaker 2: charge that involves could potentially involve jail time as a
11:44
Speaker 2: it doesn't mean you're going to get jail time. But
11:46
Speaker 2: one of the penalties for that crime is potential jail time.
11:50
Speaker 2: And you qualify financially, So you got to fill out
11:52
Speaker 2: a whether it's municipal court or managed at court or
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Speaker 2: circuit court. You felt what is basically a financial affidate.
12:00
Speaker 2: You list your assets and your income and then there's
12:02
Speaker 2: a you know, if you're indigent, then you qualify for
12:06
Speaker 2: appointed council. Now, if you qualify for appointed council, there's
12:12
Speaker 2: never any harm that I can think of in getting
12:15
Speaker 2: counsel to help you through your process. So if you
12:18
Speaker 2: have the opportunity to get appointed council, it's not going
12:22
Speaker 2: to hurt. I mean, you're going into a field or
12:25
Speaker 2: in a courtroom that you're not familiar with. They're going
12:27
Speaker 2: to use terms you're not familiar with. You're in an
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Speaker 2: unknown u. Even if you want to enter a plea,
12:32
Speaker 2: at least your lawyer can can you know, walk you
12:37
Speaker 2: through the process, tell you how to handle it. Like
12:39
Speaker 2: you might want to plead no contest versus guilty and
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Speaker 2: normally the prosecutors don't have any objection to that, and
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Speaker 2: that at the same consequence as far as penalties, if
12:50
Speaker 2: you plead no contest versus guilty, but it can have
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Speaker 2: some it can help you on in some other areas,
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Speaker 2: potentially employment and things like that, because the actical effect
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Speaker 2: of a no contest please you didn't actually admit the
13:03
Speaker 2: underlying conduct. He just said, hey, the government might be
13:07
Speaker 2: able to prove this, or you know, I don't want
13:09
Speaker 2: to deal with it, so I'll just take the penalty,
13:11
Speaker 2: but I'm not going to say I actually did it.
13:13
Speaker 2: So if you ever have a issue maybe where an
13:15
Speaker 2: employer or some other third parties said hey, what about
13:18
Speaker 2: this charge you had and said, well, I didn't really
13:21
Speaker 2: do it, but I had to, you know, I didn't
13:23
Speaker 2: want to face the trial and all that, and and
13:27
Speaker 2: so I just cut my losses and did no contests.
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Speaker 2: So it gives you a little wiggle room there, and
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Speaker 2: it can't be used you against used against you in
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Speaker 2: a civil case if there's a victim, for example, if
13:35
Speaker 2: you plead no contests, they can't go to court in
13:38
Speaker 2: the civil side for damage and say well, well he
13:41
Speaker 2: already played no contests. There's rules of evidence that don't
13:44
Speaker 2: allow that. So you know, if you have to pay
13:47
Speaker 2: a lawyer and it's going to cost thousands of dollars
13:50
Speaker 2: and it's a very minor offense, and you're confident you
13:53
Speaker 2: just get a fine or something, you can appear and
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Speaker 2: inner a plea and just be done with it. And
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Speaker 2: you know, but if you get if you're also for
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Speaker 2: appointed counsel, other than there might be a little delay
14:04
Speaker 2: because you might have to go to the first hearing
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Speaker 2: and then tell them, hey, I want to get a
14:07
Speaker 2: lawyer and see if you're eligible, and then you have
14:10
Speaker 2: to go back for the next hearing to get it done.
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Speaker 2: But but yeah, I don't I mean, hopefully they answers
14:17
Speaker 2: your question. But but yeah, if you get it, if
14:19
Speaker 2: you're qualified for appointed counsel, then there's no harm in
14:22
Speaker 2: getting appointed counsel and getting some guidance at least.
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Speaker 5: Yeah, one more question. Sure, I appreciate your time. Once
14:35
Speaker 5: you please, and the judge we'll say it's a fine.
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Speaker 2: Right.
14:41
Speaker 5: Do you have to pay it that night or do
14:43
Speaker 5: they give your time to get the money in your.
14:47
Speaker 2: Yeah, they'll give you time. See, they've modified this law
14:51
Speaker 2: a bit over the last few years. But you still have,
14:54
Speaker 2: as I understand, one hundred and eighty days to pay it.
14:57
Speaker 2: And and they'll do at least a magistrate court. I
15:02
Speaker 2: think most municipal courts will do payment plans. I don't
15:08
Speaker 2: ordinarily advise my client to do a payment plan, unlist,
15:10
Speaker 2: they just want to have a payment plan in order
15:13
Speaker 2: to make sure they don't forget. Otherwise, just save your money.
15:17
Speaker 2: Just save your money and keep it to yourself when
15:21
Speaker 2: a bank account earn an interest, and then just pay
15:23
Speaker 2: it before the one hundred and eighty day mark hits.
15:26
Speaker 2: Now they may have adjusted this law a bit, but
15:28
Speaker 2: the ordinarily the consequence of not paying a fine and
15:33
Speaker 2: court cost within one hundred eighty days is license suspension
15:36
Speaker 2: driver's license suspension. So you don't you don't want to
15:39
Speaker 2: forget because then you, yeah, you run down and pay
15:42
Speaker 2: it when your license is suspended, but then you might
15:45
Speaker 2: not be able to drive for a minute, and then
15:46
Speaker 2: you've got to go pay a reinstatement fee, which was
15:49
Speaker 2: fifty dollars, but it might be more than that at
15:51
Speaker 2: this point, and it's you know, you got to deal
15:53
Speaker 2: with DMV then and and get a document from the
15:56
Speaker 2: court saying you paid it and get it to DMV.
15:59
Speaker 2: So you don't want to You don't want to miss
16:00
Speaker 2: that timeframe.
16:01
Speaker 4: But no, you don't.
16:02
Speaker 2: Normally, I'll have clients, if they have money available, they'll
16:04
Speaker 2: just pay it that evening or that day at court
16:07
Speaker 2: because they don't want to worry about it. But no,
16:09
Speaker 2: you don't have to worry about taking you know, cash
16:13
Speaker 2: or having money in your bank to pay the fine.
16:16
Speaker 2: It's not going paying the fine that day of your
16:19
Speaker 2: hearing is not really going to help you with negotiations
16:24
Speaker 2: or or a plea deal from the prosecutor in my experience,
16:27
Speaker 2: because they're not I mean, they're not debt collectors, so
16:30
Speaker 2: they once they get a plea deal done, it's just
16:33
Speaker 2: between you and the court clerk ordinarily to make payment arrangements,
16:37
Speaker 2: and it is never required the same day that you
16:41
Speaker 2: enter your plea.
16:43
Speaker 5: Okay, okay, hey, just a plug. I'll tell your audience
16:47
Speaker 5: that when Tim says he'll get back to you, he
16:49
Speaker 5: really does. Unfortunately, I missed your call last night, and
16:54
Speaker 5: if you want to do it again today, if you
16:57
Speaker 5: have time, i'd appreciate it.
16:59
Speaker 2: Yeah, no problem, very much, Thank you, Charles, appreciate the call.
17:02
Speaker 2: Yeah I did. That was I didn't want to point
17:04
Speaker 2: it out, but Charles had called yesterday morning a lot
17:07
Speaker 2: of times. You know, I was in court all yesterday afternoon,
17:11
Speaker 2: so I try and return calls every day. If I can,
17:13
Speaker 2: and I can't get to everybody. I'm sure I miss
17:15
Speaker 2: miss some return calls, and it's not because I don't
17:18
Speaker 2: want to call you back. Just like the call Charles had,
17:21
Speaker 2: We'll get a lot of those, and so I'll set
17:23
Speaker 2: up the evening and return calls. So you might have
17:25
Speaker 2: been at dinner or something. But but that's why I
17:28
Speaker 2: like doing the radio because it gives me. It gives
17:30
Speaker 2: us five full minutes to answer questions. So hopefully we've
17:34
Speaker 2: got Charles straightened out there and give him some guidance
17:38
Speaker 2: and make him a little more comfortable on what he's
17:39
Speaker 2: going through.
17:40
Speaker 4: That's good stuff. Let's go ahead and do this. Let's
17:42
Speaker 4: take a break. It's a perfect time to do that
17:43
Speaker 4: about halfway through the show. When we come back, still
17:45
Speaker 4: have plenty of time, and give us a call. Threes or
17:46
Speaker 4: a four three four five fifty eight fifty eight three
17:48
Speaker 4: four five fifty eight fifty eight you can text. Threes
17:50
Speaker 4: are a four nine three five five zeros or eight
17:52
Speaker 4: threes are a four nine three five five zeros. You're eight.
17:54
Speaker 4: We'll take a break and be back after this. You're
17:55
Speaker 4: listening to Ask the Lawyer with Tom Payton from the
17:58
Speaker 4: Payton Law Firm online, Payton Law Froom dot Com on
18:00
Speaker 4: FBDWHS The Voice of Charleston.
18:03
Speaker 6: Sunday on Compass Media Networks coverage of NCAA basketball. It's
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Speaker 6: a Top ten battle for the state of Michigan as
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Speaker 6: the third ranked Michigan Wolverines host the eighth ranked Michigan
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Speaker 6: State Spartans. Hi It's Greg Daniels, join Rick Mahorn and
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Speaker 6: me for all the action as the Big Ten leading
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Speaker 6: Wolverines take on their longtime rivals, the Michigan State Spartans.
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Speaker 6: It's number three Michigan hosting number eight Michigan State. If
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Speaker 6: it's NCAA basketball, it's right.
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Speaker 2: Here Sunday at five point fifteen on five eighteen WCHS.
18:33
Speaker 1: If you've been injured, you need a lawyer who knows
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Speaker 1: West Virginia because they live in West Virginia. Tom and
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Speaker 1: Harvey Peyton were born and raised here. They've spent decades
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Speaker 1: fighting for injury victims, and they know how to get results.
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Speaker 1: At the Peyton Law Firm, you get straight talk, strong representation,
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Speaker 1: and local attorneys who care. Call seven five five fifty
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20:20
Speaker 2: Yeah, we got some other kind of a continuing saga here,
20:23
Speaker 2: and we'll hit on a little bit more. I use
20:27
Speaker 2: the term federal government overreach or Shenanigans maybe you'd say,
20:32
Speaker 2: But so we've talked in the past, we've got all
20:37
Speaker 2: three or four local federal judges that have been routinely
20:41
Speaker 2: granting these habeas corpus petitions, which traditionally a habeas corpus petition,
20:46
Speaker 2: if you ask a lawyer, is normally where someone's been
20:50
Speaker 2: convicted of a crime and they're incarcerated, and they've done
20:53
Speaker 2: their direct appeal. They'd appealed directly up maybe to the
20:57
Speaker 2: highest in Westernia, it would be the Supreme Court of
21:00
Speaker 2: Appeals of West Virginia, and then they've lost those direct appeals,
21:03
Speaker 2: then you can file what's called a habeas corpus petition,
21:08
Speaker 2: which is a civil case, but it's like a collateral
21:11
Speaker 2: attack on your conviction saying, well, there's these issues that
21:15
Speaker 2: weren't properly handling direct appeal or doing my trial, like
21:18
Speaker 2: maybe you had arguing you had ineffective assistance accountsl or
21:21
Speaker 2: something like that. So that's that's a traditional habeas corpus case,
21:24
Speaker 2: but it's habeas corpus is kind of translated into free
21:29
Speaker 2: the body. And so anytime somebody's detained or incarcerated and
21:36
Speaker 2: they don't believe the government's justified in keeping them incarcerating,
21:39
Speaker 2: you can file habeas corpus petitions. So it took a
21:43
Speaker 2: while to work its way to the US Supreme Court,
21:46
Speaker 2: but that's the mechanism. If a person is claims they're
21:50
Speaker 2: illegally detained for these immigration issues, then they have to
21:55
Speaker 2: file petitions for habeas corpus. So, as you can imagine,
21:59
Speaker 2: awful lot of them have and filed. Even here in
22:01
Speaker 2: West Virginia, we had this big, i don't know what
22:05
Speaker 2: you call it, movement or program or whatever, where the
22:08
Speaker 2: FEDS came in and coordinated with the local law enforcement
22:12
Speaker 2: officials here a couple of months ago, arresting and detaining
22:16
Speaker 2: a lot of people conducting these raids and so We've
22:19
Speaker 2: seen some fallout from this in our local federal court
22:23
Speaker 2: system with all these habeas corpus petitions being filed in
22:26
Speaker 2: there routinely being granted by our federal judges. And so
22:33
Speaker 2: I saw one where the government claimed somebody they detained
22:37
Speaker 2: had a marijuana charge from two thousand and nine. But
22:42
Speaker 2: the problem was that the actual defendant that was detained
22:46
Speaker 2: or the person that was detained was only five years
22:48
Speaker 2: old when in two thousand and nine they saw a name,
22:52
Speaker 2: it was a Hispanic name and just used it. I mean,
22:55
Speaker 2: it was just haphazard government work. And of course that
22:59
Speaker 2: person was merely released. But you know when our local
23:04
Speaker 2: judges make rulings on particular facts and law, and then
23:09
Speaker 2: you have a different person but pretty much the same
23:13
Speaker 2: set of facts or law come up and they're consistently
23:16
Speaker 2: ruling the same way. I mean, that's that's precedent. So
23:20
Speaker 2: generally all the judges in our district will will follow
23:24
Speaker 2: that established case law, subject to appeal. And I'm not
23:27
Speaker 2: aware of any of these locally that have been certainly
23:29
Speaker 2: not appealed to fruition and not appealed where there's been
23:33
Speaker 2: preliminary appellate rulings over ruling our local judges. So as
23:36
Speaker 2: you can imagine, the judges keep seeing these same facts
23:42
Speaker 2: coming up and the government continuing to do it and
23:44
Speaker 2: do it and do it. So it's frustrating because the
23:46
Speaker 2: law should be established. You got to provide some minimal
23:51
Speaker 2: due process to humans that are in the United States
23:55
Speaker 2: of America when the government detains them and arrests them
23:58
Speaker 2: and law them up, and due process is read a
24:03
Speaker 2: broad term, it doesn't take much a lot of times.
24:07
Speaker 2: I mean, you don't have to have a jury trial.
24:09
Speaker 2: That's part of due process in certain situations. Of course,
24:13
Speaker 2: for criminal cases it certainly is, but you know it
24:17
Speaker 2: can be as much as a hearing before just a
24:20
Speaker 2: neutral magistrate or judicial officer. And so these folks are
24:25
Speaker 2: being detained without any due process at all. And I
24:28
Speaker 2: think every local district court judge that's heard these cases
24:33
Speaker 2: has ruled against the government because they don't have legal
24:37
Speaker 2: justification to continue to detain these people. So Judge Goodwin,
24:43
Speaker 2: probably feeling the frustration of these rulings continue to come
24:50
Speaker 2: in and the federal government basically ignoring the law and
24:53
Speaker 2: forcing these folks to come to court, did issue an
24:57
Speaker 2: opinion last week which I found interesting, and this is
25:00
Speaker 2: the language from his opinion. He says, this order serves
25:04
Speaker 2: as explicit notice to all officials, state and federal involved
25:08
Speaker 2: in the detention of individuals whose cases come before this Court.
25:11
Speaker 2: Continued detention without individualized custody determinations after this Court's repeated
25:17
Speaker 2: holding that such detention violates the Fifth Amendment, will result
25:21
Speaker 2: in legal consequences. So of course the state officials aren't
25:25
Speaker 2: party to these federal cases. It's the Feds, so Justice
25:33
Speaker 2: or a judge, Goodwin points out for state jail officials,
25:36
Speaker 2: so these are folks working at the jail where these
25:39
Speaker 2: people are being taken. Those consequences include personal civil liability
25:44
Speaker 2: without qualified immunity protections. So qualified immunity is you could
25:49
Speaker 2: teach a whole law school class on what it is.
25:51
Speaker 2: It's difficult to define, but I think in simple terms,
25:54
Speaker 2: it's when somebody working for the government and employee for example,
26:00
Speaker 2: is just maybe commit simple negligence and violates someone's rights.
26:06
Speaker 2: They generally are immune from lawsuit because they're just doing
26:10
Speaker 2: their job and they can't be personally liable unless they
26:13
Speaker 2: violate very clearly established law. They know this is the law,
26:18
Speaker 2: and they break it anyway. Intentional. So that what I
26:23
Speaker 2: think Justice Goodwin saying here is that jail officials, if
26:26
Speaker 2: you accept these people and incarcerate them, here's notice, this
26:32
Speaker 2: is the clear law. So if you do that, you're
26:34
Speaker 2: subject to potential civil liability, not just personally. You could
26:40
Speaker 2: have a judgment against you. You could owe someone money or
26:43
Speaker 2: lawyer's fees. So I'm not sure how the regional jail
26:47
Speaker 2: it's all. You know, we don't have county jails anymore,
26:49
Speaker 2: having for decades, so everything's through a state Department of Corrections,
26:53
Speaker 2: through the regional jails, and here we have quarter G
26:57
Speaker 2: South Central and then Western Regional and Barber's all that
27:00
Speaker 2: serve our local counties. But those folks, hopefully they've got
27:05
Speaker 2: some policy and effect and pass it down to all
27:08
Speaker 2: their employees. There, if you get ice or somebody just
27:11
Speaker 2: showing up and want you to detain them without an arrest,
27:15
Speaker 2: want or some actual based on fact criminal case pending,
27:22
Speaker 2: I think our local officiers are going to expose themselves
27:24
Speaker 2: to lawsuits. Yeah, Judge Goodwin continued. For federal officials, those
27:31
Speaker 2: consequences could include exercise of discort's full inherent authority to
27:35
Speaker 2: enforce constential compliance, including contempt, so contempt consequences can be fines, jail.
27:45
Speaker 2: So we'll see how this plays out. But this, this
27:49
Speaker 2: deal of the Feds, sometimes in combination with our local officials,
27:57
Speaker 2: just continuing to kind of snub the knows at court
28:02
Speaker 2: rulings is going to come to a head here, I think,
28:04
Speaker 2: unless these local rulings are overturned on appeal. But I've
28:08
Speaker 2: never seen an order quite like this, and it got
28:12
Speaker 2: some headlines across the country, so I thought I would
28:14
Speaker 2: mention it, and it's not. I think, I don't know
28:19
Speaker 2: why they don't give these folks, you know quick, I
28:22
Speaker 2: just need a quick hearing. I mean some many of
28:24
Speaker 2: them are here on asylum waiting for their hearing. And
28:30
Speaker 2: I mean my inclination is the Feds just think they
28:32
Speaker 2: can do whatever they want. They don't care. But also
28:35
Speaker 2: maybe they just I mean they've cut and cut and cut.
28:37
Speaker 2: They may not have enough judges to there's a huge
28:41
Speaker 2: backlog on this. I've never done this work, but there's
28:43
Speaker 2: a huge long backlog, so you might not get your
28:47
Speaker 2: once you're in the country and apply for asylum, you
28:49
Speaker 2: might not get a hearing for years, for example, And
28:51
Speaker 2: so maybe get more judges and get these hearings done.
28:54
Speaker 2: But it's not hearings aren't complicated. And actually there was
28:58
Speaker 2: a US Supreme Court case from last week that saying,
29:01
Speaker 2: you know, whatever the the initial judge finds as far
29:05
Speaker 2: as whether you are entitled to asylum or not, there's
29:10
Speaker 2: great deference to that initial decision. So if if these
29:13
Speaker 2: folks try and appeal, they're they're climbing a really uphill battle.
29:16
Speaker 2: So they just need to get their hearing. And that's
29:18
Speaker 2: all I think Justice or Judge Goodwin is saying. And
29:22
Speaker 2: these other You've got to have somebody screen these and
29:26
Speaker 2: give them some minimal due process to make sure I
29:29
Speaker 2: mean they might not be the right person. I mean,
29:31
Speaker 2: we got there's one example I have just from reading
29:34
Speaker 2: the news where they claim a person had a criminal
29:37
Speaker 2: offense and they attached a document it's that happened in
29:40
Speaker 2: two thousand and nine when the person was five years
29:42
Speaker 2: old at the time, for drug possessions. So just the
29:45
Speaker 2: kind of And there's when you're detaining somebody. If you've
29:50
Speaker 2: ever been detained by the government against your will, I mean,
29:53
Speaker 2: government's a it's a powerful force. It's not fun and
29:57
Speaker 2: and you know when you don't I mean I can't
30:01
Speaker 2: imagine being in jail, and you have no prospect of
30:04
Speaker 2: ever going before anyone to have a hearing to see
30:06
Speaker 2: if you're even the right person, or that you meet
30:08
Speaker 2: any minimal requirements for detention. But asylum's pretty it's pretty
30:14
Speaker 2: simple hearing. I would think the judge just determines whether
30:22
Speaker 2: the person's subject to persecution in their home country, and
30:27
Speaker 2: if they have a well founded fear of persecution on
30:29
Speaker 2: account of race, religion, nactionality, membership in a particular social group,
30:34
Speaker 2: or a political opinion, then the judge can find asylum.
30:39
Speaker 2: But if they find out you haven't met that standard,
30:42
Speaker 2: then it's very minimal appeal and it should bring its
30:45
Speaker 2: course rather quickly. So it's not an onerous standard that
30:50
Speaker 2: the government has to meet, and there's been no problem
30:52
Speaker 2: meeting it for decades.
30:54
Speaker 4: So this seems from I'm not into the law fair thing, so,
31:00
Speaker 4: and I don't want to make this into too broad
31:01
Speaker 4: of a topic, but just on things that I you know,
31:04
Speaker 4: I don't really consume national media the way other people.
31:08
Speaker 4: I'm in media, so I get certain things, you know,
31:12
Speaker 4: I know people when I get certain things, I don't
31:13
Speaker 4: really read the headline things. But but a couple of
31:16
Speaker 4: things that have been surfacing all along the way when
31:19
Speaker 4: all the pressure was on the the area in Chicago
31:24
Speaker 4: before Minnesota, there was a there was judges that came
31:27
Speaker 4: out and had enumerated the amount of times that the
31:30
Speaker 4: government had had ignored the court's orders and it was
31:34
Speaker 4: in the hundreds, in the hundreds of times. And then
31:37
Speaker 4: kind of a sidelong alongside that in the federal court
31:40
Speaker 4: in d C. I think that they've ben paneled. I
31:42
Speaker 4: forget what it is, a dozen grand juries or something
31:45
Speaker 4: that's come back with no bill, which in my what
31:48
Speaker 4: I've read in a way that is almost unheard of
31:51
Speaker 4: that you don't get that sort of thing.
31:52
Speaker 2: Yeah, grand jury's are are private, meaning like if I
31:56
Speaker 2: have a client that subject to a grand jury, I
31:58
Speaker 2: don't get to go and attend the grand jury. I
31:59
Speaker 2: don't get to present evidence. It's all what the prosecution
32:03
Speaker 2: presents and they decide what witnesses to present and then
32:08
Speaker 2: see of that. Now, they're not supposed to make misrepresentations,
32:11
Speaker 2: they're not supposed to completely misconstrue situations. But you know,
32:17
Speaker 2: it's when you control what evidence is presented and there's
32:20
Speaker 2: no opposition there, there's not a judge, they are making
32:22
Speaker 2: evidentiary ruling. So generally hearsay, I mean officer can get
32:25
Speaker 2: on the standards, read from his report to the grand jurors.
32:29
Speaker 2: So you can imagine if a prosecutor wants an indictment,
32:34
Speaker 2: they can steer that evidence towards an indictment. The other
32:37
Speaker 2: thing about a grand jury is it's the standard's just
32:40
Speaker 2: probable cause. It's not beyond a reasonable doubt. Probable cause
32:42
Speaker 2: is pretty low standard or burden of proof. So when
32:46
Speaker 2: you hear that there's no true bill, I mean those
32:48
Speaker 2: grand jurors have gone back without anybody advocating that they
32:52
Speaker 2: find no probable cause, and on their own found no
32:55
Speaker 2: probable cause. So it's not I wouldn't say it's unheard of,
32:59
Speaker 2: but normally when a prosecutor wants to get an indictment
33:05
Speaker 2: through a grand jury, they will.
33:08
Speaker 4: Again, just as a citizen, this concerns me because you
33:10
Speaker 4: take all these stories into accountant it sounds like a
33:12
Speaker 4: government that's trying to redefine what the law is. Well
33:15
Speaker 4: that that got even been called out on bad faith interpretations.
33:19
Speaker 2: Yeah, and I think that's you know, Judge Goodwin, I
33:21
Speaker 2: think is trying to tell the government, like, there will
33:26
Speaker 2: be consequences to this through the judicial branch, and you
33:31
Speaker 2: know how that would would play out. I mean, there's
33:33
Speaker 2: been some contempt proceedings in some of these that are
33:37
Speaker 2: other cases about you know, you've got sometimes lawyers that
33:40
Speaker 2: shot up for the from the US Attorney's office on
33:43
Speaker 2: behalf of the federal agencies that don't know much about
33:47
Speaker 2: the underlying facts. And you can't I mean, if you
33:50
Speaker 2: hold the lawyer, you can't really hold the lawyer in contempt.
33:52
Speaker 2: They're just doing I mean, they have a client. If
33:55
Speaker 2: the US Attorney's representing a federal agency. So we'll see
33:59
Speaker 2: if some of the higher ranking officials end up getting
34:03
Speaker 2: held into court, or maybe it'll smooth over if behavior
34:09
Speaker 2: starts to change and become more compliant with with the law.
34:13
Speaker 2: But we'll see how it plays out. It's gonna be interesting.
34:16
Speaker 2: Judge Goodwins put them on notice and and it's there
34:21
Speaker 2: for everybody to read. So we'll see if this behavior
34:24
Speaker 2: keeps going and then what what the consequences are. But
34:27
Speaker 2: you know, the rule of law is what it's the
34:31
Speaker 2: it's the backbone of keeping our society in place and orderly,
34:36
Speaker 2: and just to say, well, they're this, or they're gang members,
34:39
Speaker 2: or labeling people, and that's that's really dangerous when you
34:42
Speaker 2: start just excusing violation of basic constitutional rights just because
34:48
Speaker 2: of labels pace placed upon people many times which are
34:54
Speaker 2: not even accurate in any any sense.
34:59
Speaker 4: Say, it's it's concerning when you see things that have
35:03
Speaker 4: been norms over times start to free and disappear. But
35:06
Speaker 4: then when you look at the underpinning things. But behind
35:09
Speaker 4: some of these norms, there was never anything codified. There
35:11
Speaker 4: was no congressional action, there was no actual law or
35:13
Speaker 4: anything like us just like this is the way we've
35:15
Speaker 4: always done things, so you know what fair game? You know,
35:17
Speaker 4: we never we never codified those in any way. If
35:20
Speaker 4: somebody wants to change the way the norms are, that's
35:22
Speaker 4: one thing. But then when you start seeing that the
35:24
Speaker 4: law principally is trying to be modified or changed without
35:28
Speaker 4: any congressional just about using words differently than what they're
35:32
Speaker 4: supposed to be meant for, that's concerning as a citizen
35:35
Speaker 4: because because it really does get into kind kind of
35:36
Speaker 4: a kafka esque like you could be accused of being
35:40
Speaker 4: guilty of virtually anything.
35:41
Speaker 2: Yeah, stretching the law. But you know, just violating basic
35:46
Speaker 2: tenets of the Constitution is uh, what's happening here, And
35:52
Speaker 2: that's that's what Judge Goodwin's trying to put a stop too.
35:55
Speaker 2: And we'll see if it We'll see how it plays
35:56
Speaker 2: out and see how it sinks. In with the with
35:59
Speaker 2: the fads, you would think if they weren't haphazard, there
36:04
Speaker 2: would be some significant brainstorming going on, like how can
36:07
Speaker 2: we still conduct our detainments and deportations but aggressively, but
36:16
Speaker 2: do it in a way that you know, we think
36:19
Speaker 2: will actually comply with the law versus just continuing to
36:23
Speaker 2: violate the law over and over again.
36:26
Speaker 4: And we've seen it done efficiently in the past. I mean,
36:29
Speaker 4: so it can be done, sure, just not as fast.
36:31
Speaker 2: As the current regime wants wants to get it done.
36:34
Speaker 2: But it I mean it could be maybe maybe a
36:39
Speaker 2: instead of putting Uh I heard, at least anecdotally, the
36:42
Speaker 2: ICE is now getting funded more than like the Marine Corps.
36:45
Speaker 2: That may not, that may be what numbers you look at,
36:47
Speaker 2: but uh, put it then to getting more judges and
36:50
Speaker 2: getting people processed through the immigration system much quicker, and then.
36:55
Speaker 1: Uh pays job creation.
36:56
Speaker 2: Right, Sure you can do it? Well, yeah, it is
36:59
Speaker 2: and and we need that. But of course, obviously if
37:02
Speaker 2: this past year it has been the opposite of that.
37:03
Speaker 2: So but there's a way to do it. If they
37:05
Speaker 2: just wanted wanted to do it and get it done,
37:08
Speaker 2: I think that would pass Congress with both parties probably
37:12
Speaker 2: pretty easily.
37:13
Speaker 4: It's good stuff as always from the Payton Law Firm.
37:15
Speaker 4: You can put the power of faith on your side,
37:16
Speaker 4: not only every Thursday right here on the radio, but
37:18
Speaker 4: also of course you can call the Payton Law Firm
37:20
Speaker 4: seven five five fifty five fifty six seven five five
37:22
Speaker 4: fifty five fifty six three zero four seven five five
37:25
Speaker 4: fifty five fifty six, Payton Lawfirm dot com, p E
37:28
Speaker 4: y tu and Payton Lawfirm dot Com in Nitro, West Virginia. Tom,
37:31
Speaker 4: thank you much.
37:32
Speaker 2: Hey, enjoyed being here. Dad will be here next week.
37:33
Speaker 2: I'll be on the TAM We'll see you guys.
37:34
Speaker 4: Then that's gonna be the Payton Law Firm back next
37:36
Speaker 4: Thursday at eight twenty right here on five AD w CHS.
37:38
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