Latest / WCHS Network Podcasts / 10/22/2026 Ask the Lawyer with Harvey Peyton

Transcript

10/22/2026 Ask the Lawyer with Harvey 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 580 WCHS, its employees,
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  Speaker 1: or WVRC Media.
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  Speaker 2: In our courts, all men are created equal.
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  Speaker 1: We're mass communicating! We're breaking rocks in a hot sun.
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  Speaker 2: I'm on the lawn.
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  Speaker 1: In a low one. Once again, it is a Thursday
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  Speaker 1: morning and there is no reason to fight the law.
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  Speaker 1: You can put the law on your side this morning
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  Speaker 1: with the Payton Law Firm. Harvey Payton is in studio
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  Speaker 1: with us this morning, taking your phone calls 304-345-5858, 304-345-5858
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  Speaker 1: on Ask the Lawyer. Harvey, good morning. How are you
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  Speaker 1: doing this morning?
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  Speaker 2: Well, I'm doing quite well, Coop. It's a pleasure again
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  Speaker 2: to be here. Tom is in Columbus, Ohio. Well, he's
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  Speaker 2: on his way back from Columbus this morning. He and
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  Speaker 2: his son Houston went up yesterday to see a professional
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  Speaker 2: soccer game. in Columbus, Houston, was quite a good soccer player,
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  Speaker 2: quite accomplished in high school. Now, he didn't play in college.
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  Speaker 2: Tom still plays adult night soccer, much to my chagrin.
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  Speaker 2: He almost got his leg broken here a couple of
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  Speaker 2: years ago. So you've got the– I think I'll be
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  Speaker 2: here next week as well because after that I'm going
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  Speaker 2: to be off for a couple of weeks. I've got
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  Speaker 2: a little medical issue I've got to take care of.
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  Speaker 2: So Tom– Gleefully allowed me to take his place. I
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  Speaker 2: hope we get some calls. I want to apologize. First off,
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  Speaker 2: I mean, two weeks ago I was on the show
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  Speaker 2: and sometime during the broadcast, you mentioned to me, get
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  Speaker 2: closer to the microphone. Well, I didn't realize how bad
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  Speaker 2: that was in my office. I've got a speaker phone,
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  Speaker 2: so I usually don't pick up the cradle to take
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  Speaker 2: a call. I just press speaker because there's nobody else
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  Speaker 2: in the office. And I use a voice to text.
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  Speaker 2: dictating program, which operates on a microphone in my, my screen.
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  Speaker 2: And so I'm just used to, well, after you mentioned
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  Speaker 2: that I was ran into the esteemed Larry gross, the,
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  Speaker 2: the go-to person for, uh, the performing arts in, in
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  Speaker 2: this area. And, uh, Larry said, Harvey, You got to
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  Speaker 2: sit closer to the microphone. Well, I was listening to
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  Speaker 2: you and I couldn't hear you. And I know they
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  Speaker 2: have good equipment because I go in that studio as well.
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  Speaker 2: You're right. So now I have it scooted right up
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  Speaker 2: on me. Now, we don't have a sneeze guard on
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  Speaker 2: this microphone. We used to have those on the ones
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  Speaker 2: in the old studio. We've moved beyond that. So, you know,
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  Speaker 2: this is– gosh, we're getting ready to move into our
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  Speaker 2: 28th season, maybe 19. Yeah. 1999. Wow. My goodness. To 2000. Yeah. 27, 27.
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  Speaker 2: It'll be 28 years, which, uh, you know, it's, it's
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  Speaker 2: quite an accomplishment. We've been a part of the community
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  Speaker 2: for all that time.
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  Speaker 1: And we'll have to give you a watch in two
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  Speaker 1: more years. I think I want it to be gold, please.
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  Speaker 2: No gold plate. Um, You know, the law is a
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  Speaker 2: fairly constant thing. And more than any, I mean, civil
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  Speaker 2: law tends to change with the times. You know, the
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  Speaker 2: shifting of culture and cultural norms and standards of conduct
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  Speaker 2: can change. And so the civil law, that is, it
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  Speaker 2: controls liability for tort claims where one person negligently or
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  Speaker 2: intentionally injures another or where contracts are interpreted. They change.
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  Speaker 2: You know, they respond to influences like artificial intelligence or
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  Speaker 2: different means of communication, electronic signing. But the law regarding
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  Speaker 2: criminal misconduct is remarkably static. It is in West Virginia
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  Speaker 2: and I think in most other jurisdictions. The one thing
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  Speaker 2: that last week we've been following for a couple of weeks,
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  Speaker 2: I think this station had Somebody in person down in
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  Speaker 2: Boone County, did you not?
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  Speaker 1: Yeah, we did.
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  Speaker 2: Yeah, Boone County, wonderful place, which has really gotten slammed.
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  Speaker 2: I've got a lot of friends in and around Boone County.
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  Speaker 2: They had a lot of great lawyers down there in Madison. But,
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  Speaker 2: you know, with this– with the collapse of the coal
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  Speaker 2: industry and declining population, school closures and consolidations, it's just
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  Speaker 2: not a good thing. But they were confronted with a case,
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  Speaker 2: a bad case, a Kennedy-Miller case. a young unfortunate child
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  Speaker 2: who died actually of malnutrition while in the care of
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  Speaker 2: her mother and grandparents in a living arrangement that unfortunately
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  Speaker 2: is not at all uncommon now in West Virginia where
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  Speaker 2: there are shared generational families in a household. Maybe there's
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  Speaker 2: been some neglect along the line. There are elements of
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  Speaker 2: income that are based on– transfer payments like SSI or
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  Speaker 2: social security disability, a mine pension, or maybe some elements
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  Speaker 2: that make it sort of disincentivize reaching out to public agencies, right?
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  Speaker 2: Because it's like the tenant who doesn't tell the landlord
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  Speaker 2: that there's a leaky toilet until the lavatory floor falls
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  Speaker 2: through because, well, if we tell them, They'll look and
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  Speaker 2: they'll raise the rent. Just that little fear of either
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  Speaker 2: loss and reduced benefits or loss and greater outlay. Whatever
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  Speaker 2: the reason, the mother of the child pleaded guilty, I believe,
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  Speaker 2: and was sentenced to a prison for her admitted role
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  Speaker 2: in the denial of sustenance and care to this child
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  Speaker 2: that resulted in its death. Last week, the grandmother was
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  Speaker 2: on trial, also a resident of the household. And I
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  Speaker 2: followed it right closely because, you know, first of all,
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  Speaker 2: Dan Holstein, who's the prosecutor in Boone County, and they're
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  Speaker 2: lucky to have him. Dan was down in Putnam County
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  Speaker 2: for a while. He was on the prosecutor's staff of O.C.
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  Speaker 2: Spalding before Judge Spalding went on the bench. And I
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  Speaker 2: think Dan was in Kanawha County. for a while maybe
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  Speaker 2: even when the great Pete Brown was still a chief
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  Speaker 2: assistant down there, and he's been in Boone County for
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  Speaker 2: a while, and he had two really good defense attorneys,
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  Speaker 2: lawyers that know what they're doing, which always makes for
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  Speaker 2: a better case. People say, well, I hope they don't
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  Speaker 2: get a very good lawyer. And I say, well, I
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  Speaker 2: hope they do because you can deal with a good lawyer.
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  Speaker 2: It's a bad lawyer who doesn't know the law or
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  Speaker 2: who's full of flamboyance and chutzpah that makes it hard
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  Speaker 2: to get things done. The real question in the case
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  Speaker 2: is an item called scienter. It's something that the public
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  Speaker 2: may hear about. It's going to be the same issue
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  Speaker 2: that I believe is going to come up in the
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  Speaker 2: Kanawha County case that's in front of Judge Hardy relative
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  Speaker 2: to the Kanawha County Ambulance Authority ex-employee who has been
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  Speaker 2: charged with voluntary manslaughter, among other charges related to the
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  Speaker 2: death of a pedestrian in up in the Clendenin area
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  Speaker 2: some months ago. Cyanide means intent. That's what governs whether
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  Speaker 2: your conduct is or is not criminal. It's not a
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  Speaker 2: crime for a person to witness another party commit a
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  Speaker 2: crime and not intervene. You have a right, a legal right.
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  Speaker 2: You may have a moral imperative to act, but moral
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  Speaker 2: imperatives aren't the basis of our most of our criminal law.
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  Speaker 2: But if you simply turn your back, walk away, you
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  Speaker 2: don't have to be a good Samaritan, then you're not
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  Speaker 2: guilty of a crime. But inaction can be a crime
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  Speaker 2: based upon cyanide. That is the presence of criminal intent,
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  Speaker 2: the intent in your mind that what you're doing is
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  Speaker 2: going to assist in or promote the commission of a
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  Speaker 2: crime or be an element of the crime itself, the
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  Speaker 2: Classic example is a lookout. You're standing on a corner. Well,
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  Speaker 2: you're not doing anything. You know this person's going to
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  Speaker 2: rob a store, and your job is to look out
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  Speaker 2: for the police and alert them. Now, that's a crime.
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  Speaker 2: You're an accessory, a principal in the second degree. You're
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  Speaker 2: just as guilty of the crime as they are. If
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  Speaker 2: you're driving in a car and your friend says, stop
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  Speaker 2: here at this gas station, and you stop at the
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  Speaker 2: gas station, and the person then comes running out and says,
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  Speaker 2: take off. You drive away, you get down the street
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  Speaker 2: and say, hey, get out of my car. What the
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  Speaker 2: heck did you do? Well, you're not guilty of a crime.
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  Speaker 2: You were there. You saw it. You go home and say,
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  Speaker 2: I just don't want anything to do with this. I'm
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  Speaker 2: not going to call the police. That's not a crime. Now,
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  Speaker 2: if you assist the person overtly, then it is. But
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  Speaker 2: the jury, I mean, I admire jurors monumentally. The jury
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  Speaker 2: trial system, that's how I made my living for years.
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  Speaker 2: trying cases in front of juries, both criminal and civil,
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  Speaker 2: everything from wrongful death to first-degree murder. And it's hard.
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  Speaker 2: It's not easy to be a juror. And here you
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  Speaker 2: are confronted with this case, and the facts are so bad.
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  Speaker 2: I mean, it's a child, I think a 12-year-old child
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  Speaker 2: who is, without question, died of malnutrition while in the
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  Speaker 2: care or in the home of some relatives. I mean,
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  Speaker 2: on its face, that's an uphill battle for the defense,
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  Speaker 2: even with the presumption of innocence. it's one of those
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  Speaker 2: crimes like child sexual abuse. Stranger on stranger sexual assault.
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  Speaker 2: It is so shocking to the conscience on its face
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  Speaker 2: that you've got an uphill battle and to get to
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  Speaker 2: a level playing field before he can even start talking about,
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  Speaker 2: you know, the presumption of innocence and proof beyond a
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  Speaker 2: reasonable doubt. You know, the jury did find in the
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  Speaker 2: case in Boone County that the grandmother had, through her inaction,
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  Speaker 2: some involvement, some intent to achieve the ultimate result, which
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  Speaker 2: was the death of the child, and they convicted her
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  Speaker 2: of first-degree murder. but didn't include a recommendation of mercy,
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  Speaker 2: which means that she will be eligible for parole after
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  Speaker 2: 15 years. Now, that's been increased by the legislature. The
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  Speaker 2: time for eligibility for parole, I think we went up
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  Speaker 2: to 25 years this past legislative session. So that's sort
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  Speaker 2: of the Salango law about Ben Salango's brother-in-law who was
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  Speaker 2: killed and eligible for parole after 10 years. However, this crime...
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  Speaker 2: with regard to Kennedy Miller, occurred before the punishment was enhanced.
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  Speaker 2: And so it's the punishment that is the law at
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  Speaker 2: the time of the crime that governs. This lady will
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  Speaker 2: be eligible to be paroled, released from prison after serving
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  Speaker 2: a total of 15 years. That doesn't mean she'll be released,
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  Speaker 2: but it means that she is legally entitled to and
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  Speaker 2: can compel the state to give her an opportunity for parole.
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  Speaker 2: Given her age, one wonders whether, even with the recommendation
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  Speaker 2: of mercy, this may not be a life sentence. 394,
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  Speaker 2: I think, in 15 years. Yeah. That's, you know, the
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  Speaker 2: likelihood is that that sentence is not going to be
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  Speaker 2: served out, right? And we're going to see, in the
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  Speaker 2: same vein, in the future, what happens with the case
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  Speaker 2: of the ambulance driver. I was really proud of Statements
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  Speaker 2: I heard from Judge Hardy, Dave Hardy. He's been around
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  Speaker 2: a long time. I think Dave is almost my age.
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  Speaker 2: He's younger than me, and he's from the opposite end
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  Speaker 2: of the county. I grew up in St. Albans, and
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  Speaker 2: he grew up up in the eastern end of Kanawha County.
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  Speaker 2: But it's a terrible case. The 19-year-old rookie ambulance driver
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  Speaker 2: strikes a pedestrian. There's a marked disagreement between her account
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  Speaker 2: of what happened and what some video surveillance actually shows.
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  Speaker 2: She's charged with a crime. There is now a report
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  Speaker 2: from the chief medical examiner who did, as they always do,
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  Speaker 2: an analysis of the decedent's blood. And they did find
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  Speaker 2: some evidence of methamphetamine use. The lawyers for the ambulance
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  Speaker 2: driver then asked for the ability to hire an expert
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  Speaker 2: to And it was objected to by the state. How
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  Speaker 2: is that relevant? Well, we don't know until we know
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  Speaker 2: what the expert says, right? But in any event, the
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  Speaker 2: expert's not available for quite some time. And Judge Hardy's
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  Speaker 2: response is, well, we're going to do it because what's
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  Speaker 2: the hurry? You know, the crime was committed. There's no
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  Speaker 2: real chance that there's going to be evidence dissipated here.
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  Speaker 2: This person is entitled to a fair trial. They're entitled
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  Speaker 2: to a fair shot. And if it takes an expert
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  Speaker 2: witness to analyze this and tell us what they can say,
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  Speaker 2: now maybe what they can say after the testing is done,
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  Speaker 2: I will hear that and say, well, that's not relevant.
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  Speaker 2: But you can't shoot from the solid and just make
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  Speaker 2: a judgment offhand. We had a case yesterday decided by
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  Speaker 2: our Supreme Court where– Something similar happened. It was not
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  Speaker 2: in Kanawha County. It was a case where a young
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  Speaker 2: woman had had a history of drug use. And as
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  Speaker 2: a part of her drug use, there were some issues
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  Speaker 2: of neglect of her children. However, she had been through
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  Speaker 2: the drug court in that particular county, had a job,
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  Speaker 2: had a car, had clean drug scans done. But a
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  Speaker 2: text message from her turned up on the phone of
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  Speaker 2: a drug dealer in an unrelated matter, and the department
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  Speaker 2: just took her children. So, well, because you were in
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  Speaker 2: contact with a drug dealer, it's just presumptively, you say
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  Speaker 2: you were talking about marijuana, and you admit that you
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  Speaker 2: smoke marijuana on occasion, but no evidence that the children
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  Speaker 2: were malnourished, their needs weren't being met, or that she
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  Speaker 2: was in any way otherwise abusive, even in the opinion
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  Speaker 2: of the non-abusive father of one of her children. But
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  Speaker 2: for whatever reason, the judgment was simply made without any
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  Speaker 2: evidence you're hearing that this phone number was the result
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  Speaker 2: of drug use and terminated her parental rights, took the
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  Speaker 2: children away. Now, The judge did say terminated the rights conditionally,
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  Speaker 2: and so she voluntarily relinquished on the condition she could appeal.
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  Speaker 2: And the Supreme Court yesterday, I think, did absolutely the
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  Speaker 2: right thing. They just reversed it. This is reversed. This
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  Speaker 2: order is vacated. There's just utterly new evidence, real evidence
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  Speaker 2: here of– drug use or abuse that affected these children,
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  Speaker 2: which could have certainly been avoided had there been more,
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  Speaker 2: I think, attention to detail at the circuit court level.
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  Speaker 2: It just might not have achieved the result that the
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  Speaker 2: department and the sheriff's department wanted. They got the result
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  Speaker 2: they wanted, but in the end they lost. The law
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  Speaker 2: takes time. Civil cases take time. Criminal cases take time.
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  Speaker 2: If you're dealing with human beings, You're dealing with judges, witnesses,
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  Speaker 2: police officers, trying to coordinate those all to be in
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  Speaker 2: one place at one time. Tom and I, well, primarily Tom,
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  Speaker 2: tried an attempted murder case down in Campbell County two
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  Speaker 2: years ago that was five years old. And that's just
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  Speaker 2: the way it works. It takes time to prepare a case,
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  Speaker 2: get it to trial, get it concluded. The case has
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  Speaker 2: still got an element which is on appeal to the
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  Speaker 2: West Virginia Supreme Court.
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  Speaker 1: So, although you're not, although you're obviously not part of
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  Speaker 1: the case, we were talking about the Lewis death, the
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  Speaker 1: ambulance driver case a moment ago. And I wonder if
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  Speaker 1: just for a second, you could, I guess, reiterate one
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  Speaker 1: of the things that I'm seeing on, for example, our
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  Speaker 1: social medias. This story is by far the most hot thing.
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  Speaker 1: I mean, I don't mean that in a positive way.
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  Speaker 1: I just mean we put a story out about this
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  Speaker 1: and it. blows up nationally. I mean, we get like
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  Speaker 1: hundreds of thousands of impressions, not what we typically get.
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  Speaker 1: It gets way up there. We'll get thousands of comments
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  Speaker 1: and interactions on this story. And the vast majority of
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  Speaker 1: the people are upset that it was even made public
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  Speaker 1: that Lewis was said to have– potentially have meth in
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  Speaker 1: his system. And what does it have to do with
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  Speaker 1: the case? So on and so forth. And What you
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  Speaker 1: were talking a minute ago, it seems to me– I
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  Speaker 1: don't know anything, but it seems to me that a
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  Speaker 1: judge doing his due diligence isn't going to let something
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  Speaker 1: like this hang because what happens if you ignore it
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  Speaker 1: and then it comes back around later and maybe it's
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  Speaker 1: a reason for there to be reasonable doubt or a
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  Speaker 1: reason for there to be some sort of appeal or
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  Speaker 1: something along those lines? It just seems like taking all
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  Speaker 1: the steps and checking all the boxes like you were
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  Speaker 1: talking about is OK because the goal of– of making
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  Speaker 1: this right is still what's in line. It seems like anyway,
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  Speaker 1: but people are super upset over it. And it's not
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  Speaker 1: my family, so I'm just looking at this observationally and saying, wow,
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  Speaker 1: there's literally hundreds if not thousands of responses just on
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  Speaker 1: our Facebook and our social medias on this with nearly
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  Speaker 1: a million impressions across. I mean, it's incredible the amount
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  Speaker 1: of people that are reading these stories.
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  Speaker 2: Well, first thing I would say, would the same reaction
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  Speaker 2: have prevailed– And did it prevail when it was released
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  Speaker 2: that George Floyd had some drugs in his system when
• 18:53
  Speaker 2: he was murdered by a policeman in Milwaukee or Minneapolis? Yeah, no.
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  Speaker 2: I don't know whether it was or not. We've come
• 19:02
  Speaker 2: now in this spate of where the greatest threat to
• 19:05
  Speaker 2: the United States are the 1% of the population who
• 19:09
  Speaker 2: identify as Muslim and maybe the 30% of that 1%
• 19:12
  Speaker 2: who actually practice Islam. The meme said, have you ever
• 19:19
  Speaker 2: seen a Girl Scout in a hijab? I said, well,
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  Speaker 2: not here because there are only less than a thousand
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  Speaker 2: Muslims in West Virginia, but have you ever seen an
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  Speaker 2: Amishman in a Boy Scout uniform?
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  Speaker 1: Yeah, right.
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  Speaker 2: And what would be the difference between those two folks? Duh. Yeah, well,
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  Speaker 2: I think understandably the family's upset. I've handled, unfortunately, way
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  Speaker 2: too many wrongful death claims and been involved in murder
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  Speaker 2: cases where I'm certainly the villain because I'm representing the defendant.
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  Speaker 2: The emotions are high. It's understandable. I think the factor
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  Speaker 2: here is it's looked upon as if the state, quote
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  Speaker 2: the state, the establishment represented by a public employee is
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  Speaker 2: accused of some misconduct towards a member of the general public,
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  Speaker 2: and there were questions about how closely this thing was investigated,
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  Speaker 2: how it was carried out right after the fact. It's just,
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  Speaker 2: it's like all the movies that cast the U.S. government
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  Speaker 2: and the CIA as evil, or the idiotic movies that
• 20:30
  Speaker 2: cast people that are in the members of organized crime
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  Speaker 2: as good or acceptable. It's just a human reaction. Well,
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  Speaker 2: Anything that the state does now, anything that's allowed, has
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  Speaker 2: to be in furtherance of some either existing or implied
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  Speaker 2: conspiracy not to provide justice to this family. Well, justice
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  Speaker 2: is justice. How would you feel if Judge Hardy said, well, no,
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  Speaker 2: I don't see what that has to do with this? Well,
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  Speaker 2: I don't either because I don't know what the expert
• 21:04
  Speaker 2: is going to say. Well, that would cut the– The
• 21:08
  Speaker 2: Supreme Court would go through that like poop through a
• 21:10
  Speaker 2: ten-horned settler, right? And it would just come back. I
• 21:17
  Speaker 2: think it's absolutely and fundamentally the right decision because until
• 21:21
  Speaker 2: you know what someone might say, you can't judge whether
• 21:24
  Speaker 2: it's relevant.
• 21:25
  Speaker 1: It just seems like being meticulous to me and that
• 21:26
  Speaker 1: seems like a good thing in the law.
• 21:28
  Speaker 2: Well, listen. It is a good thing in the law.
• 21:31
  Speaker 2: It's a good thing for lawyers, too. We've talked about
• 21:33
  Speaker 2: this before. You better pay attention to every detail. And
• 21:37
  Speaker 2: if you don't sit and look at a case from
• 21:39
  Speaker 2: the standpoint of what the other side can do, I mean,
• 21:43
  Speaker 2: clients will sit and look at you and say, well,
• 21:44
  Speaker 2: whose side are you on? I say, well, I'm on
• 21:46
  Speaker 2: your side. But I can't effectively represent your side unless
• 21:50
  Speaker 2: I think about their side. They're over there working just
• 21:54
  Speaker 2: as hard on the other end of this. We'll take
• 21:57
  Speaker 2: a break.
• 21:57
  Speaker 1: Yeah, while we do this, let's go ahead and take
• 21:58
  Speaker 1: our break. If you want to get in, our phone
• 22:00
  Speaker 1: lines have been open the whole time. No phone calls
• 22:02
  Speaker 1: and no texts as of yet. I know that we've
• 22:04
  Speaker 1: been heavily talking this morning, but if you have any
• 22:06
  Speaker 1: advice that you need on the legal aspect, or if
• 22:08
  Speaker 1: you want to talk about any of the topics that
• 22:09
  Speaker 1: Harvey's addressed this morning, you're more than welcome to give
• 22:11
  Speaker 1: us a call at 304-345-5858. 345-5858. You can also text 304-935-5008.
• 22:17
  Speaker 1: We'll take a break and be back right after this.
• 22:19
  Speaker 1: You're listening to Ask the Lawyer with Harvey Payton from
• 22:21
  Speaker 1: the Payton Law Firm, online at paytonlawfirm.com. This is 580 WCHS,
• 22:25
  Speaker 1: The Voice of Charleston.
• 22:26
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• 23:03
  Speaker 1: It's about 15 minutes now to the top of the hour.
• 23:10
  Speaker 1: You're listening to Ask the Law here on 580 WCHS.
• 23:14
  Speaker 1: The voice of Charles and I'm Dale Cooper. Harvey Payton
• 23:15
  Speaker 1: is in the studio with us this morning. And you
• 23:17
  Speaker 1: can give him a call if you have any questions
• 23:18
  Speaker 1: about the law. You can put the law on your
• 23:19
  Speaker 1: side this morning with the Payton Law Firm. Give us
• 23:22
  Speaker 1: a call at 304-345-5858, 304-345-5858. Payton Law Firm online, paytonlawfirm.com, P-E-Y-T-O-N, paytonlawfirm.com.
• 23:31
  Speaker 2: Well, early voting opened yesterday. Yep, that was yesterday. Well, unfortunately,
• 23:36
  Speaker 2: I had to do some business down at the Putnam
• 23:38
  Speaker 2: County Courthouse. And now in the old courthouse, the ceremonial
• 23:44
  Speaker 2: courtroom that's on the second floor of the old courthouse,
• 23:47
  Speaker 2: that's where the one courtroom we had in the county
• 23:49
  Speaker 2: until Gosh, the late 90s when we built the judicial
• 23:53
  Speaker 2: annex with two circuit courtrooms and magistrate courtrooms. So the
• 23:59
  Speaker 2: ceremonial room, which is largely used for meetings and other functions,
• 24:03
  Speaker 2: is where the polling place is. They had one over
• 24:06
  Speaker 2: at the Valley Park as well in Taze Valley. And,
• 24:09
  Speaker 2: you know, I was pleased. Went in about, oh, 3 o'clock, 3.30.
• 24:14
  Speaker 2: And they had had, what, the one lady told me,
• 24:18
  Speaker 2: more people. early voters on the first day yesterday than
• 24:21
  Speaker 2: they could recall. Now they didn't have the numbers. They
• 24:24
  Speaker 2: wouldn't have had the numbers till the end of the
• 24:27
  Speaker 2: day when they could count the poll slips. But I
• 24:30
  Speaker 2: just noticed, you know, you get the poll slip and
• 24:33
  Speaker 2: you hand it to them with your ballot and they
• 24:35
  Speaker 2: put it on a ring, you know, wire ring so
• 24:39
  Speaker 2: they can keep the poll slip and the ballots. So
• 24:41
  Speaker 2: if they ever have to match them up, it's pretty full. And, um,
• 24:46
  Speaker 2: Every booth was full while I was there. My wife
• 24:48
  Speaker 2: and I both went down and voted and, you know,
• 24:51
  Speaker 2: looked at the ballot. A couple of important races on there.
• 24:54
  Speaker 2: This is an off year, but in Putnam County, you know,
• 24:58
  Speaker 2: we have a nonpartisan judicial election. And then there's also
• 25:04
  Speaker 2: a constitutional amendment on the ballot. You know, in Kanawha County,
• 25:13
  Speaker 2: There is our nonpartisan election, I think, for two magistrate slots.
• 25:17
  Speaker 2: We lost a couple of magistrates, I think, through retirement.
• 25:25
  Speaker 2: So those seats are now filled by appointees. But, you know,
• 25:31
  Speaker 2: because of the time when the vacancy occurred, an election
• 25:34
  Speaker 2: has to take place for the remaining term. And those
• 25:36
  Speaker 2: are really important. And it's right at the end of
• 25:39
  Speaker 2: the ballot, you know, the nonpartisan election. really important because
• 25:44
  Speaker 2: you're talking about people who are, for instance, with a
• 25:46
  Speaker 2: circuit judge. Uh, we have two circuit judges in Putnam County. Uh,
• 25:51
  Speaker 2: we have Phil Stowers, who's been there, uh, since 2008. He's, uh,
• 25:56
  Speaker 2: in his third term. And, uh, we have a vacancy because, unfortunately,
• 26:00
  Speaker 2: Mark Sorcea, uh, good man, solid citizen, uh, he became
• 26:07
  Speaker 2: ill and retired from the bench. So we have, uh, Well,
• 26:13
  Speaker 2: right now we have a designated judge from the Supreme Court.
• 26:21
  Speaker 2: The governor did not fill any vacancy pending the election
• 26:24
  Speaker 2: because whoever wins the election in Putnam County will take
• 26:30
  Speaker 2: office when the results are certified.
• 26:33
  Speaker 1: So it would be very short if he appointed someone. Right.
• 26:35
  Speaker 2: I mean, that's been done sometimes. I mean, I can
• 26:39
  Speaker 2: recall back maybe in the 80s. where someone just wanted
• 26:47
  Speaker 2: to be a judge. Because once you're served on the bench,
• 26:51
  Speaker 2: you're generally referred to as judge or your honor the
• 26:53
  Speaker 2: rest of your life. And so the governor would name
• 26:57
  Speaker 2: someone who was a particular friend or an old and
• 27:01
  Speaker 2: esteemed lawyer who wasn't going to run for the unexpired term,
• 27:05
  Speaker 2: or maybe they would do it as a political move. Well,
• 27:09
  Speaker 2: I'm not going to name either of these candidates because...
• 27:13
  Speaker 2: I don't want to favor anybody. And so that happens.
• 27:16
  Speaker 2: And that's, I think, pretty much a thing of the past.
• 27:20
  Speaker 2: Although it certainly could have happened. The governor could have
• 27:23
  Speaker 2: gone through the Judicial Commission and named someone today to
• 27:29
  Speaker 2: serve until maybe the middle of November. Again, Tom, I
• 27:34
  Speaker 2: listened to Tom's show last week. He had Christina, Chris
• 27:38
  Speaker 2: Raines on. It's probably not fair for me to Talking
• 27:43
  Speaker 2: about Chris, I voted for, but because it's one of those,
• 27:47
  Speaker 2: I've been around 50 years. I mean, her dad had
• 27:49
  Speaker 2: the most interesting will contest. And this is all a
• 27:53
  Speaker 2: matter of public record. So it's not any really rains.
• 27:57
  Speaker 2: Her father was an educator and a coach and a farmer.
• 28:00
  Speaker 2: And he alleged, or we alleged that he had inherited
• 28:06
  Speaker 2: a farm in Putnam County from a lady who passed
• 28:09
  Speaker 2: away in, uh, a retirement home in Raleigh County. And
• 28:15
  Speaker 2: among her effects, there was a Reader's Digest sweepstakes envelope
• 28:25
  Speaker 2: upon which she had written on the back. She started
• 28:28
  Speaker 2: writing the date. My name is so-and-so. And she got
• 28:33
  Speaker 2: to the edge of the envelope and turned it on
• 28:34
  Speaker 2: the side and wrote around in a spiral, almost like
• 28:39
  Speaker 2: a maze, and ended up in the center of the
• 28:41
  Speaker 2: back of the envelope with So by signing her name,
• 28:43
  Speaker 2: all of which was, I want my farm in Putnam
• 28:48
  Speaker 2: County to go to Rudolph Rains. And, of course, it
• 28:52
  Speaker 2: wasn't witness. It was just written in her own hand
• 28:57
  Speaker 2: on an envelope. Well, of course, she had an heir,
• 29:03
  Speaker 2: an intestate heir who claimed the farm. And so we
• 29:06
  Speaker 2: got into it and went down and tried this case.
• 29:08
  Speaker 2: I actually tried it in front of the county commission
• 29:10
  Speaker 2: in Raleigh County. And had to subpoena the staff and
• 29:14
  Speaker 2: people from the nursing home. Oh, yeah, they recognized her handwriting. And, yes,
• 29:22
  Speaker 2: she was always getting mail and she was always entering contests. And, yeah,
• 29:26
  Speaker 2: the county commission admitted it. And that was the end
• 29:28
  Speaker 2: of it. Rudy got the farm. And, you know, I
• 29:31
  Speaker 2: often use that as an example. Anything can be a will,
• 29:34
  Speaker 2: so long as it means something. If it's all in
• 29:37
  Speaker 2: the person's handwriting, it has donative intent or testamentary intent.
• 29:42
  Speaker 2: It's like, I give to so-and-so. This one actually I
• 29:46
  Speaker 2: had written on it. It is my will that. So
• 29:49
  Speaker 2: it had the word, but you don't need that. And
• 29:52
  Speaker 2: then it has to be signed in a manner that
• 29:56
  Speaker 2: indicates a signature.
• 29:57
  Speaker 1: Well, okay.
• 29:58
  Speaker 2: As I recall, her signature wasn't in the center. It
• 30:01
  Speaker 2: was at the bottom. It ended here, and the spiral
• 30:06
  Speaker 2: ended in the center of the envelope, and she signed
• 30:08
  Speaker 2: the lower margin. Well, it was a will, and you know,
• 30:18
  Speaker 2: so I'm not saying that Rudy Raines and I were
• 30:21
  Speaker 2: good friends. We were cordial acquaintances pretty much the rest
• 30:23
  Speaker 2: of his life. He passed away a couple of years ago,
• 30:25
  Speaker 2: and you know, Chris had a mom, her mom, Connie
• 30:28
  Speaker 2: was a really good English teacher. I had a young
• 30:32
  Speaker 2: lady who worked in our office, uh, whose daughter, uh,
• 30:35
  Speaker 2: we were really close to the lady who worked in
• 30:38
  Speaker 2: our office. And, uh, Chris's mom, Connie changed her daughter's life.
• 30:43
  Speaker 2: I mean, she wanted to become an English teacher after
• 30:49
  Speaker 2: taking English at Buffalo from Connie rains. I mean, that's
• 30:52
  Speaker 2: just about as good as you can get for a teacher. So, um,
• 30:56
  Speaker 2: I mean, that's where my heart is. I can't tell
• 30:58
  Speaker 2: anybody how to vote. They're going to vote how they
• 31:00
  Speaker 2: want to vote. But it's important that you vote. You know,
• 31:04
  Speaker 2: we had one unfortunate circumstance. There was a Senate candidate who,
• 31:10
  Speaker 2: in the 4th Senatorial District, who was running in opposition
• 31:13
  Speaker 2: to Senator Eric Tarr, and he was disqualified because of
• 31:18
  Speaker 2: a residency issue. Only just in the last couple of weeks.
• 31:22
  Speaker 2: So his name's on the ballot, but there was a
• 31:24
  Speaker 2: sign posted Everywhere on green construction paper in the polling place,
• 31:30
  Speaker 2: this was disqualified. And if you vote for this candidate,
• 31:36
  Speaker 2: that vote won't be certified. Now, how many people look
• 31:40
  Speaker 2: at that? I would wager that candidate will get some
• 31:42
  Speaker 2: votes because people don't read signs very often. Right, right.
• 31:47
  Speaker 1: Harvey Payton is with us for a few more minutes
• 31:48
  Speaker 1: this morning. You can get in. You still have time
• 31:50
  Speaker 1: to get in if you'd like to. You can send
• 31:52
  Speaker 1: us a text this morning at 304-935-5008, 304-935-5008. You can
• 31:57
  Speaker 1: also give us a call real quick. You can get
• 31:59
  Speaker 1: in at 304-345-5858, 304-345-5858 is our number if you want
• 32:04
  Speaker 1: to get in on the phone lines this morning.
• 32:06
  Speaker 2: You know, there was an interesting article. Oh, I do.
• 32:10
  Speaker 1: Have a question over text if we want to get
• 32:11
  Speaker 1: to that real quick. Oh, yeah, sure. From the 304-984,
• 32:13
  Speaker 1: are you required to use an attorney to sell real
• 32:15
  Speaker 1: estate in West Virginia?
• 32:17
  Speaker 2: To sell real estate? Well, I mean, you can't be
• 32:23
  Speaker 2: a real estate agent. You cannot sell property for someone
• 32:26
  Speaker 2: else and earn a commission on the sale unless you're licensed.
• 32:31
  Speaker 2: But if you have a piece of property and you
• 32:33
  Speaker 2: want to sell it to your neighbor or to a
• 32:35
  Speaker 2: third party or put a sign in the yard that
• 32:37
  Speaker 2: says for sale by owner, so long as you're acting
• 32:40
  Speaker 2: on your own behalf, yeah, I mean, you can write
• 32:44
  Speaker 2: a contract. You can download one. You can write your
• 32:47
  Speaker 2: own deed if you want to. Now, if you don't
• 32:52
  Speaker 2: do it correctly and there's a high probability that it
• 32:55
  Speaker 2: won't be, then it's a trouble in the future. But
• 32:59
  Speaker 2: the answer to your question is if you are acting
• 33:01
  Speaker 2: on your own behalf, selling your own piece of property,
• 33:04
  Speaker 2: and you're not claiming any commission for selling a piece
• 33:07
  Speaker 2: of property for someone else, you can sell your own land.
• 33:12
  Speaker 1: I really can't imagine what this space looks like right now.
• 33:14
  Speaker 1: Back when I was doing mortgages– shorthand, we call it FSBOs,
• 33:17
  Speaker 1: for sale by owner, FSBOs. And in Michigan, where the
• 33:22
  Speaker 1: land contract rules are very loose, you can basically get
• 33:24
  Speaker 1: a land contract, backdate it, and suddenly you have seasoning
• 33:28
  Speaker 1: in a home. I mean, not that I would do that,
• 33:29
  Speaker 1: but you would have landlords doing things like that and
• 33:31
  Speaker 1: everything else. But the disparity in the different types of
• 33:36
  Speaker 1: contracts that you would get for people doing their real
• 33:38
  Speaker 1: estate were just, I mean, some people would download them.
• 33:40
  Speaker 1: I mean, this was back in the 90s. So some
• 33:42
  Speaker 1: people would find some legal disc that they would download
• 33:45
  Speaker 1: the stuff from, or they would find something that a
• 33:48
  Speaker 1: friend had passed down, or they would handwrite. I mean,
• 33:50
  Speaker 1: some of this stuff was just an absolute mess.
• 33:51
  Speaker 2: Well, and you see, and I, of course, one of
• 33:57
  Speaker 2: the important things that you learn as a lawyer, do
• 33:59
  Speaker 2: not be judgmental of folks who come to you. Many
• 34:01
  Speaker 2: of their problems are self-created, but that's why they come
• 34:05
  Speaker 2: to see you. Not to be judged, not to be
• 34:07
  Speaker 2: criticized for what happened in the past, but to try
• 34:10
  Speaker 2: and find some solution. I mean, So if you see
• 34:16
  Speaker 2: someone heard that a, quote, quick claim deed, which is
• 34:20
  Speaker 2: not quick claim, it's quit, Q-U-I-T, is the thing to do, well, okay.
• 34:29
  Speaker 2: But what you get is a piece of property without
• 34:31
  Speaker 2: any warranty from the seller that it's free and clear
• 34:36
  Speaker 2: of liens and encumbrances. and you get a document that's
• 34:40
  Speaker 2: probably going to be questioned by some title attorney in
• 34:42
  Speaker 2: the future of, well, why is this a quitclaim deed
• 34:45
  Speaker 2: without warranty as opposed to a valid deed? Or you
• 34:49
  Speaker 2: see the unfortunate situation where someone wants to copy a description,
• 34:57
  Speaker 2: but they're a little lazy, perhaps, or just inadvertently think, well,
• 35:02
  Speaker 2: this is all lawyer language, so they just start 53 degrees,
• 35:08
  Speaker 2: 47 minutes east, 168 feet. Well, okay, but where does
• 35:12
  Speaker 2: that start? Where is the point of beginning? I mean,
• 35:15
  Speaker 2: a valid description has to close. You have to be
• 35:19
  Speaker 2: able to take a compass and plot those courses and
• 35:24
  Speaker 2: distances and make a closed parcel.
• 35:29
  Speaker 1: It might look like Greek to you, but somebody that
• 35:31
  Speaker 1: knows what they're doing can actually sketch out your land
• 35:33
  Speaker 1: with those descriptions.
• 35:33
  Speaker 2: Oh, sure. I mean, you see people– I mean, look–
• 35:36
  Speaker 2: In the heyday of the oil and gas business down here,
• 35:38
  Speaker 2: now it's over. The shallow well drilling is over. But
• 35:41
  Speaker 2: you couldn't get in the Putnam County Courthouse record room
• 35:44
  Speaker 2: and Connell County pretty much the same way. And you
• 35:47
  Speaker 2: see the land people there. And, of course, they've got
• 35:49
  Speaker 2: a compass and graph paper because they're looking to see
• 35:52
  Speaker 2: what they own. You can. We have one minute?
• 35:57
  Speaker 1: Yeah, about one minute.
• 35:58
  Speaker 2: Well, the Peyton Law Firm, and to say that, we
• 36:01
  Speaker 2: are not judgmental. You know, you may have tried to
• 36:03
  Speaker 2: settle your own claim. And you've maybe done some things
• 36:07
  Speaker 2: that are going to be a bit problematic to try
• 36:10
  Speaker 2: and get you complete justice. Well, that's not our judgment
• 36:13
  Speaker 2: to make. Maybe you've downloaded your own documents. Maybe you've
• 36:17
  Speaker 2: tried to deal with a life insurance company who won't pay.
• 36:21
  Speaker 2: And you think, well, I screwed this up. I'm going
• 36:23
  Speaker 2: to throw up my hands. That's what we're there for
• 36:25
  Speaker 2: to help you. So, paytonlawfirm.com. You'll see us. We're here
• 36:30
  Speaker 2: and have been here as in here before.