Latest / WCHS Network Podcasts / 10/08/2026 Ask the Lawyer with Harvey Peyton

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10/08/2026 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. We're mass communicating.
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Speaker 1: Breaking rocks in a hot sun.
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Speaker 3: Up on the lawn in a low one.
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Speaker 2: You can put the law on your side this morning.
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Speaker 2: No reason to wait.
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Speaker 1: Harvey Payton is here from the Payton Law Firm, taking
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Speaker 1: your calls at 304-345-5858, 304-345-5858, online, paytonlawfirm.com.
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Speaker 2: Good morning.
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Speaker 1: I'm Dale Cooper, and Harvey Payton is in studio with
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Speaker 1: us this morning. How are you doing this morning, Harvey?
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Speaker 2: Well, excuse me. I'm doing fine, actually. It's been a
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Speaker 2: good week, actually a very good summer at the Payton
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Speaker 2: Law Firm. We've stayed quite busy, and You know, I
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Speaker 2: was out of the office for a month or so
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Speaker 2: in June. I had some surgery to repair an aortic aneurysm,
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Speaker 2: but I bounced back nicely from that, and everything's on
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Speaker 2: an even keel now. Looking forward to that last stretch
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Speaker 2: until the holidays. There's a real difference. I mean, I've
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Speaker 2: been practicing law now. I've been licensed to practice law
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Speaker 2: 52 years. First couple years, I was working as a
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Speaker 2: law clerk for a federal court, But the active courtroom
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Speaker 2: office practice, I was thinking the other day, if I
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Speaker 2: make it till May the 17th, 2027, I'll have practiced
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Speaker 2: law in Nitro, Putnam County, for 50 years. That's a
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Speaker 2: long time to be in one place, and experience counts.
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Speaker 2: In the old days, which seemed like they were only yesterday,
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Speaker 2: Before computers and email and AI and cell phones that
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Speaker 2: you could carry in your pocket with more computing capacity
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Speaker 2: than we used to fly to the moon. Well, now
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Speaker 2: everybody's busy every minute of every day. You know, you
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Speaker 2: think back in the 70s, there was sort of a
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Speaker 2: cycle of lawyers. Everybody worked really hard from Christmas until
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Speaker 2: April because you had to get the money to pay
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Speaker 2: your income tax. And then... Kicked it in gear until
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Speaker 2: summer when people went on vacation and came back. I mean,
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Speaker 2: cases were hard to try in the summertime then because
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Speaker 2: people were out of town. You couldn't get a hold
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Speaker 2: of them. Doctors were busy. And then you went back
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Speaker 2: in the fall and tried to turn up the heat
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Speaker 2: enough to get some money for Christmas and whatever. It
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Speaker 2: was a circular sort of society, you know, summer, fall, winter, spring, summer, fall, winter, spring.
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Speaker 2: It wasn't really the lineal path that we follow today
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Speaker 2: with everybody busy every second of the time. But, you know,
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Speaker 2: we've certainly kept up at the Payton Law Firm, and
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Speaker 2: we're in tune with what technology has done for lawyers,
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Speaker 2: done for a lot of businesses, in fact. But in
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Speaker 2: the practice of law, Tom and I practice together. I've
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Speaker 2: had as many as five other attorneys in the office
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Speaker 2: at times back in the late 90s and early 2000s
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Speaker 2: and 13 support staff. And we've trimmed that back a lot.
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Speaker 2: It's Tom and I, and we have a really good
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Speaker 2: staff that's been with us a long time. And why
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Speaker 2: can we do that? Well, we can do it because
3:38
Speaker 2: technology allows it to be done. I mean, I started
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Speaker 2: practicing law when if you wanted to dictate a letter
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Speaker 2: to A person, male or female, secretary, came and sat
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Speaker 2: across the desk with a steno pad and opened it,
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Speaker 2: and you started to talk, and they had a fountain
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Speaker 2: pen that they used Greg's shorthand to take down what
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Speaker 2: you said, and then went out and put a piece
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Speaker 2: of good stationery and a typewriter backed up by a
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Speaker 2: piece of paper carbon paper and onion skin, which is a,
4:23
Speaker 2: people that don't know what onion skin is, it was
4:24
Speaker 2: a paper, regular size sheet of paper that was quite thin,
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Speaker 2: like the skin on an onion. And they would use
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Speaker 2: a typewriter with a ribbon on it and type, you know,
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Speaker 2: mechanically or, you know, electronically, but still a mechanical process
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Speaker 2: of pushing the keys and then bring that back to
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Speaker 2: you to proofread. And if there was a mistake, you
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Speaker 2: just had to do it all over again. Obviously, a
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Speaker 2: somewhat slow and cumbersome process. Slowly, by the 80s, Radio
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Speaker 2: Shack made desktop computers and word processors available. IBM was
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Speaker 2: still in the business, and now you have the IBM
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Speaker 2: rollerball typewriters. We had a lawyer here in town named
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Speaker 2: James McIntyre, a really great lawyer, and Jim was a
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Speaker 2: divorce commissioner in the old days. There were lawyers appointed
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Speaker 2: by the circuit judges to actually hear the evidence in
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Speaker 2: divorce cases, render what was called a recommendation and a
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Speaker 2: final order. And generally, they heard uncontested divorces, which were
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Speaker 2: almost by rote. And Jim had a secretary named Peggy,
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Speaker 2: who literally was a human word processor. I don't know
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Speaker 2: how fast Peggy could type, but it was well over
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Speaker 2: 120 words a minute. And without mistakes. I mean, it's
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Speaker 2: pretty incredible. And I recall once there was a court
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Speaker 2: reporter from up in Jackson County. I think she was L.D.
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Speaker 2: Kessels or L.D. Caperton's first cousin. And she was taking
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Speaker 2: down a deposition. I was on the defense side where
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Speaker 2: I was for a couple of years and a lawyer
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Speaker 2: named Sam Lipinski, who was sort of legendary here in town.
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Speaker 2: as an aggressive trial lawyer, was on the other side,
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Speaker 2: and we had a witness subpoenaed. Sam subpoenaed him. Well,
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Speaker 2: the guy showed up drunk. And it was really hard
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Speaker 2: to understand what the guy was saying. I mean, he
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Speaker 2: was talking in circles and having a lot of trouble.
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Speaker 2: And so we get the transcript, and every grunt, every word, everything,
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Speaker 2: I mean, she got down everything. flawlessly, which it was
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Speaker 2: just incredible. But then it transitioned to the time that
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Speaker 2: I was sitting in my office. I had a young
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Speaker 2: lawyer working with me, Joe Whittington, who's a really, really
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Speaker 2: good guy. He lives down in Mason County. Now, he's
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Speaker 2: kind of cut back on the practice law and went
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Speaker 2: into the real estate business with his dad, but he
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Speaker 2: was standing at the door of my office watching me
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Speaker 2: dictate a letter to Jennifer, my wife, who was quite
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Speaker 2: adept at shorthand, and said, can I help you, Joe?
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Speaker 2: And he said, well, I'm just watching because I've never
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Speaker 2: seen anybody do that. Well, now we've turned the corner.
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Speaker 2: But from the standpoint of the availability of good lawyers
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Speaker 2: who have the most current technology, funding in place to
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Speaker 2: handle the most complex cases, and the time to give
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Speaker 2: individual attention to our clients, certainly the Payton Law Firm
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Speaker 2: is ready and able to fill that role. We have
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Speaker 2: an office, a very nice office at 2801 First Avenue
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Speaker 2: in Nitro, which is right on the Kanawha-Putnam County line.
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Speaker 2: I will say that Putnam County has really been our lifeblood,
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Speaker 2: my lifeblood for the 50 years I've been there, but
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Speaker 2: along with Mason County, Lincoln County, Jackson County, and then
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Speaker 2: Western Kanawha County because Tom and I both grew up
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Speaker 2: in St. Albans. My dad grew up in St. Albans.
8:06
Speaker 2: He aged into high school in St. Albans. He was
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Speaker 2: originally born in Gawley Bridge. So we've been there in
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Speaker 2: the area for starting near 100 years, the Patons, and
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Speaker 2: we're going to be there for a long time more.
8:22
Speaker 2: So if you're looking for a lawyer to handle something
8:24
Speaker 2: like an auto accident, an injury claim, heaven forbid, a
8:29
Speaker 2: claim for the wrongful death of a loved one, and
8:31
Speaker 2: we've handled a lot of those, unfortunately. or dispute with
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Speaker 2: an insurance company about coverage or a life policy where
8:39
Speaker 2: they won't pay. You know, I can't tell you who
8:42
Speaker 2: to hire or, you know, go online and look at
8:46
Speaker 2: our results from all over the world and see what
8:49
Speaker 2: a claim might be worth in South Florida or the
8:51
Speaker 2: Bronx or East St. Louis or Los Angeles, which are
8:57
Speaker 2: notoriously high verdict areas as opposed to what results you
9:00
Speaker 2: can get here. if you compare the patent law firm
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Speaker 2: to our success here, I think it's unparalleled. And we'd
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Speaker 2: ask you to give us a thought. Now, having said that,
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Speaker 2: I hope we get some calls today. That is the
9:14
Speaker 2: purpose of the show. We started doing this show. Actually,
9:16
Speaker 2: we've got a longstanding year, 26 going on 27 years,
9:20
Speaker 2: come the first of the year and taking calls and
9:23
Speaker 2: talking to folks. And a lot of people call the
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Speaker 2: office or email us now that say, well, we've listened
9:28
Speaker 2: for years, but I don't want to call in. So, Well,
9:31
Speaker 2: that's just fine. I mean, we're here to help people.
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Speaker 2: Lawyers should be here to help people as opposed to
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Speaker 2: being here simply for the purpose of treating it as
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Speaker 2: a business and cranking out results and cash. I mean,
9:45
Speaker 2: don't get me wrong. It can be a lucrative profession
9:47
Speaker 2: if you're good at it and if you work really
9:49
Speaker 2: hard at it. But there should be more to it
9:52
Speaker 2: than that. With sort of segues, you know, everybody has
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Speaker 2: seen the killer mockingbird. Not everyone has seen the killer mockingbird.
10:00
Speaker 2: but the great movie with Gregory Peck, Robert Duvall's first
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Speaker 2: real role. It was a dramatization of the Harper Lee
10:11
Speaker 2: novel with regard to the lawyer in the Southern Down
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Speaker 2: who takes the representation of an unpopular defendant. the finest
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Speaker 2: character of lawyers, which sort of weaves into reality. Last
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Speaker 2: week on the show, we spoke about, or I spoke,
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Speaker 2: I guess, probably too much about a proposal put forward
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Speaker 2: by a member of the West Virginia State Senate, perhaps
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Speaker 2: put forward, to reinstate the death penalty in West Virginia
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Speaker 2: for the non-lethal, non-fatal abuse of sexual abuse of a
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Speaker 2: child under the age of 12. And we talked about
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Speaker 2: the fact that there's a Supreme Court case from 2008,
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Speaker 2: which indeed said that that in and of itself violated
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Speaker 2: the Eighth Amendment prohibition against cruel and unusual treatment, that
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Speaker 2: the non-lethal, unless there was an intent to kill and
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Speaker 2: a lethal result, that the death penalty was inappropriate. And
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Speaker 2: at that time, really, I was unaware that just the
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Speaker 2: day before in Tennessee, there had been a case, which
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Speaker 2: is quite current in the news now, of a woman,
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Speaker 2: a murderer. She and some accomplices tortured and murdered a
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Speaker 2: classmate at a work center in Nashville, Tennessee. She was
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Speaker 2: found guilty, pled guilty. Apparently, the nature of the crime
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Speaker 2: was heinous. She was sentenced to death, even though at
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Speaker 2: the time of the crime she was 18, spent 30
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Speaker 2: years on death row, and it defies me why we
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Speaker 2: have people on death row for that period of time,
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Speaker 2: but we do. I mean, the fellow that was executed,
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Speaker 2: killed yesterday in Texas was 26 years on death row,
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Speaker 2: but death by lethal injection, which we're we're told, I mean,
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Speaker 2: it's a sop to society. You think, well, it's painless.
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Speaker 2: It's like seeing your pet put to sleep. And obviously
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Speaker 2: it's not. This young woman was injected twice with some
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Speaker 2: sort of pentothal drug, which is meant to induce somewhat
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Speaker 2: peaceful death, although nobody ever asks the person because they
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Speaker 2: can't answer, which didn't work. She did not die. And
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Speaker 2: after a considerable period of time, was transported to a
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Speaker 2: hospital where she has now regained consciousness and recovering, which
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Speaker 2: gives rise to an immediate flurry of Internet traffic and
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Speaker 2: social media traffic about, well, now she's off the hook
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Speaker 2: because the United States Constitution, the Fifth Amendment, prohibits double jeopardy.
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Speaker 2: And putting a person through this experience again of anticipated death,
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Speaker 2: but amount to cruel and unusual punishment in violation of
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Speaker 2: the eighth amendment. Well, in, in furtherance of what one
13:21
Speaker 2: of our missions on this show is to, is to
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Speaker 2: dispel urban rumors that the answer to those questions are
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Speaker 2: no and no. Uh, the fact that an execution is botched,
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Speaker 2: a trap door on a gallows doesn't open, uh, An
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Speaker 2: injection of a drug designed to induce death does not work,
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Speaker 2: does not prohibit the state of Tennessee in this case
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Speaker 2: from reissuing a death warrant and carrying out the sentence.
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Speaker 2: I mean, double jeopardy has to do with your conviction,
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Speaker 2: with being held in jeopardy for the commission of a crime.
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Speaker 2: It says that, you know, if you're tried for murder
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Speaker 2: in a state court under state law, and you're found
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Speaker 2: not guilty, then you cannot ever again be charged in
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Speaker 2: state court with that crime or even a similar crime
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Speaker 2: with the same elements under state law. It's prohibited. Whether
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Speaker 2: the occurrences of last week in Tennessee will be deemed
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Speaker 2: to amount to cruel and unusual punishment to prohibit the
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Speaker 2: second administration or attempt at killing this woman, I think
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Speaker 2: this is an issue the Supreme Court is going to
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Speaker 2: have to decide. You know, there is a case that
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Speaker 2: every kid learns about in law school because, you know,
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Speaker 2: that's the legend. Somebody– the hanging doesn't work. The rope breaks.
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Speaker 2: So you're off the hook.
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Speaker 1: Colloquially, I always thought that, or just like urban legendally
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Speaker 1: or however it is. I always thought, hey, you know,
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Speaker 1: if you get out, then that's God's way of telling
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Speaker 1: you that you were unwrongly convicted or you were wrongly convicted.
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Speaker 2: Well, you'll be able to talk to God about it
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Speaker 2: after they do it the second time. Right, exactly. If
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Speaker 2: that's where you're headed. Now, there's a case that was
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Speaker 2: decided back in the 40s that in criminal law, in
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Speaker 2: law school, you're going to learn about. I mean, I
15:18
Speaker 2: never forgot it because it's another case out of Louisiana.
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Speaker 2: like the case from 2008 about the non-lethal sexual assault
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Speaker 2: of children. Let's see. Willie Francis was the defendant, and
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Speaker 2: he was convicted in a rural parish in Louisiana of
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Speaker 2: the shooting death, the murder, during an apparent robbery of
15:46
Speaker 2: a jewelry store owner, quite a popular individual. They arrested Willie.
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Speaker 2: He died. took it on the lamb and was picked
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Speaker 2: up a few months later. He confessed he was 18
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Speaker 2: at the time and a black person who had killed
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Speaker 2: a white man in Louisiana. Obviously at that time, maybe
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Speaker 2: even today, there was a great deal of antipathy towards him.
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Speaker 2: Some issue that his trial was almost a farce. He
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Speaker 2: had an appointed lawyer who was not paid anything, who
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Speaker 2: asked no questions. stated no objections, made a closing argument,
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Speaker 2: sat down. The jury returned a verdict of death, and
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Speaker 2: he was promptly taken to the state penitentiary in Louisiana,
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Speaker 2: where he was promptly, much more promptly than today. His
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Speaker 2: appeal expired within a few months, and he was put
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Speaker 2: in the electric chair. Leather hood placed over his head, shaved,
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Speaker 2: electrodes attached, and boom, with a single jolt of presumably
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Speaker 2: lethal electricity, was administered, and it didn't kill him. Well,
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Speaker 2: the method of punishment was a single jolt of electricity.
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Speaker 2: It didn't kill him, so they unstrapped Willie and took
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Speaker 2: him back to the cell and said, what do we
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Speaker 2: do now? And they said, well, the governor issued another
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Speaker 2: death warrant. And at that time, there was a lawyer
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Speaker 2: in his hometown where the murder was committed who undertook
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Speaker 2: the case of Willie Francis for nothing. He didn't get paid.
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Speaker 2: He was subjected to community opprobrium, social abuse, and ostracism
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Speaker 2: for doing this. But he took the Willie Francis case
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Speaker 2: all the way to the United States Supreme Court on
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Speaker 2: the position that having survived the lethal jolt, which was
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Speaker 2: the only thing he could be given, to do that
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Speaker 2: again would be double jeopardy. Or under the circumstances, it
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Speaker 2: would be violative of the Eighth Amendment to the Constitution
17:50
Speaker 2: as cruel and inhuman treatment because here you're taking a
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Speaker 2: person from the death house to the electric chair, everything again,
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Speaker 2: the fear, the apprehension. And probably not surprisingly, in the
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Speaker 2: late 1940s, the United States Supreme Court, I think it
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Speaker 2: was about a six to three decision, they said, no,
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Speaker 2: it's not. double jeopardy. Jeopardy has to do with your conviction,
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Speaker 2: not your punishment. And the state, the judgment of the
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Speaker 2: jury was death, and so the state can inflict that
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Speaker 2: even if they're not successful the first time. And secondly,
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Speaker 2: because the administration of the punishment is going to be
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Speaker 2: the same the second time, everybody is apprehensive in the
18:36
Speaker 2: face of death, and it's not cruel and unusual. Now,
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Speaker 2: Would that change today? I don't think so with regard
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Speaker 2: to the double jeopardy because it's simply not double jeopardy.
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Speaker 2: And that's just legal black letter law. It's the conviction.
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Speaker 2: It's being placed in jeopardy of conviction of a crime twice,
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Speaker 2: not the threat of execution more than once. But, you know,
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Speaker 2: have societal standards changed? as our Supreme Court said it
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Speaker 2: had back in 2008, to outlaw the death penalty for
19:18
Speaker 2: non-lethal abuse of a child. So that today, the administration
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Speaker 2: of a lethal drug that then does not kill the person,
19:27
Speaker 2: but puts them in intensive care, on a ventilator, and
19:31
Speaker 2: now you're asking them to do that again. Does that now,
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Speaker 2: by today's standards... constitute cruel, unusual treatment. It's going to
19:39
Speaker 2: be an interesting case. It'll be litigated for sure. It's
19:46
Speaker 2: got to work its way through court. There's a local
19:49
Speaker 2: judge in Tennessee who ordered all the evidence to be held.
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Speaker 2: But the legal issue of cruel and unusual treatment, that
19:56
Speaker 2: certainly is going to work its way through a district
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Speaker 2: court in Louisiana to the Court of Appeals in Louisiana
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Speaker 2: to probably, regardless of the outcome, a certiary or a
20:10
Speaker 2: direct appeal to the United States Supreme Court on that
20:14
Speaker 2: very issue, unless, of course, and this may well happen,
20:21
Speaker 2: if you're the Attorney General of Tennessee or a really
20:25
Speaker 2: bright member of the staff, you look at this and say,
20:27
Speaker 2: you know, if we look at the Sullivan case from
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Speaker 2: 2008 and this reasoning about Changing standards may influence what
20:39
Speaker 2: is and is not cruel and unusual treatment. And we
20:43
Speaker 2: are today, and Tennessee is one of the states, asking
20:46
Speaker 2: the United States Supreme Court to say that, well, those
20:50
Speaker 2: standards have now shifted in reverse so that we can
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Speaker 2: execute a non-lethal child abuser. Should we let this case
20:58
Speaker 2: go to the Supreme Court to test that same theory
21:02
Speaker 2: when the is botched. And what I would tell the governor,
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Speaker 2: if I were the attorney general of Tennessee, which I'm not,
21:11
Speaker 2: never will be, is look, gov, we want this issue
21:15
Speaker 2: to go to the Supreme Court now on a clean
21:20
Speaker 2: hands position that this is what the law is. We've
21:23
Speaker 2: convicted someone. There are no wrinkles in this. They're the
21:27
Speaker 2: non-lethal abuser of a child. We want you to say
21:31
Speaker 2: that current standards allow the death penalty. It's going to
21:36
Speaker 2: be hard for us to do that if we're at
21:38
Speaker 2: the same time up there telling the court, well, let
21:45
Speaker 2: them hear an argument about those standards shifting to let
21:49
Speaker 2: us try and kill this woman again in a case
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Speaker 2: that's really, really got bad facts. Let's commute this sentence
21:55
Speaker 2: to life. And we'll come up with a good press
21:59
Speaker 2: release about the family issues Nothing will bring the woman back.
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Speaker 2: It's a horrible crime. And just commute the sentence, and
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Speaker 2: that's the end of it. Not let it get to
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Speaker 2: the Supreme Court. I mean, that's what I would do.
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Speaker 2: Because it has the risk of running contra to what
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Speaker 2: Tennessee wants to do in another circumstance. And you've got
22:22
Speaker 2: this terrible facts. A woman's strapped down. They can't find
22:26
Speaker 2: a vein. They shoot her this pentothal, which I suspect
22:29
Speaker 2: is painful. And they're trying to get a vein. They
22:31
Speaker 2: will try to put a central line in her. Listen,
22:34
Speaker 2: I had a central line put in, a subclavian central
22:39
Speaker 2: line put in. It doesn't feel real good when they
22:41
Speaker 2: make a big incision in your chest and put a
22:43
Speaker 2: line in there. So it would be interesting to see
22:46
Speaker 2: what happens. I would bet, I would wager more than
22:50
Speaker 2: a 50% or 60% probability that the governor of Tennessee,
22:55
Speaker 2: he's going to have to talk to the family of
22:56
Speaker 2: the victim because they were there. I mean, you know,
22:58
Speaker 2: this was another– teenage girl who was killed in a
23:02
Speaker 2: horrible manner. And, uh, if he can bring the family
23:06
Speaker 2: around or even neutralize the family, I suspect he'll commute
23:09
Speaker 2: this sentence to life and that'll be the end of it. Boom.
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Speaker 2: It's gone. So that's my prediction. We'll see. I'll be
23:16
Speaker 2: better at that than I am. I think of picking
23:18
Speaker 2: them out. Oh boy.
23:19
Speaker 1: That's been, that's been an adventure.
23:21
Speaker 2: Well, I predicted it would be three and two at
23:24
Speaker 2: this point in the, uh, In the season, although I
23:27
Speaker 2: had them losing in an upset to Coastal Carolina and
23:32
Speaker 2: losing on a neutral site to Virginia and beating Oklahoma
23:38
Speaker 2: State and Iowa State at home and away. And, you know,
23:40
Speaker 2: here they give up 43 and 45 points two weeks
23:44
Speaker 2: in a row. And this is starting to look like
23:46
Speaker 2: a Dana Holgerson team, right? Right, yeah. Where you can
23:50
Speaker 2: put up 70 points. What did they do against Oklahoma
23:53
Speaker 2: the year in Morgantown that– They lost, but I forget
23:57
Speaker 2: what the score was. Oh, yeah.
23:59
Speaker 1: Big Tavon Austin game.
24:00
Speaker 2: Tavon Austin just 400 plus yards that he couldn't stop
24:03
Speaker 2: him when we lose. TCU beat us on a last minute,
24:07
Speaker 2: like 80 yard touchdown run. Uh, 40 something to 30 something. It's, uh,
24:13
Speaker 2: but I will stand by this prediction. I think that's, uh,
24:17
Speaker 2: that's going to happen. I think the probability is that
24:21
Speaker 2: the woman in Tennessee will have her sentence commuted to life. Uh,
24:27
Speaker 2: And with that, we're going to take a break. And
24:30
Speaker 2: if you guys want to call, if somebody wants to
24:31
Speaker 2: call in, now's a really good time to do it
24:33
Speaker 2: or to send us a text. And we will get
24:36
Speaker 2: to it in the second part of the show. How's that?
24:38
Speaker 2: There you go.
24:39
Speaker 1: You can call this morning at 304-345-5858, 345-5858. You can
24:40
Speaker 1: also text 304-935-5008. 304-935-5008. Peyton Law Firm online, peytonlawfirm.com, P-E-Y-T-O-N, peytonlawfirm.com.
24:52
Speaker 1: Give you more information before we get out of here today,
24:54
Speaker 1: but you can give Harvey a call now, 304-345-5858. We'll
24:57
Speaker 1: take a break and be back right after this. You're
24:59
Speaker 1: listening to Ask the Lawyer on 580 WCHS.
25:01
Speaker 2: I'm Dale Cooper. That's Harvey Peyton. We'll be back right
25:03
Speaker 2: after this.
25:05
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26:05
Speaker 2: American League Divisional Series Elimination Game.
26:08
Speaker 1: Chicago at Cleveland, tonight at 8 after Let's Talk with
26:11
Speaker 1: Carl Lee on 580 WCHS. It is about 12 minutes
26:29
Speaker 1: to the top of the hour. You're listening to Ask
26:31
Speaker 1: the Lawyer, 580 WCHS, The Voice of Charleston.
26:33
Speaker 2: I'm Dale Cooper.
26:33
Speaker 1: Thanks for tuning in. On this Thursday morning, Harvey Payton
26:36
Speaker 1: is in studio for you this morning. If you have
26:37
Speaker 1: any questions for the Payton Law Firm, you can put
26:39
Speaker 1: the power of the law on your side. Put the
26:42
Speaker 1: power of Payton at 304-345-5858, 304-345-5858.
26:43
Speaker 2: You can text 304-935-5008.
26:43
Speaker 1: And online, it's PaytonLawFirm.com, P-E-Y-T-O-N, PaytonLawFirm.com.
26:45
Speaker 2: Yeah, well, you know, it's not a happy topic. And
26:57
Speaker 2: I've never practiced law during a period of time when
27:01
Speaker 2: the death penalty was an option, and I don't want to.
27:06
Speaker 2: And I can certainly understand why other attorneys don't want to,
27:09
Speaker 2: but I practice law in West Virginia and in the
27:12
Speaker 2: federal courts here, and I've tried cases in Indiana and
27:17
Speaker 2: Ohio and Western Virginia and Kentucky. But whether the death
27:23
Speaker 2: penalty is appropriate in Texas, that's for the people of
27:26
Speaker 2: Texas to decide I would be opposed to the reinstitution
27:32
Speaker 2: of the death penalty in West Virginia under any circumstances
27:36
Speaker 2: because I know what the law was and what it
27:42
Speaker 2: still is with regard to the crime of murder in
27:45
Speaker 2: the first degree, which can get the functional equivalent of death,
27:50
Speaker 2: which is life in prison without the possibility of parole here.
27:55
Speaker 2: I mean, you talk about a premeditated death. killing. There
27:58
Speaker 2: are certain killings that are first-degree murder in and of themselves. Poison,
28:02
Speaker 2: lying in wait, arson, killing someone during a kidnapping, if
28:09
Speaker 2: the kidnapping was for gain. And then there is first-degree murder,
28:13
Speaker 2: which is a premeditated crime. But we adhere to a
28:16
Speaker 2: common law theory that says premeditation can be a second.
28:22
Speaker 2: You can decide in the middle of an affray, I
28:27
Speaker 2: intend to kill this person and I have an evil heart.
28:32
Speaker 2: I want this person dead. And if a jury finds
28:36
Speaker 2: that that state of mind existed for even a moment
28:39
Speaker 2: prior to the act, you can be found guilty of
28:42
Speaker 2: premeditated first degree murder, which I don't think the public realizes.
28:47
Speaker 2: You think a premeditated murder is someone who sits down
28:49
Speaker 2: and plans a killing. They talk to somebody, they hire
28:53
Speaker 2: someone to If someone hires you to kill someone and
28:56
Speaker 2: with that intention you go and kill a person, with
29:00
Speaker 2: that sort of, so that is purely arbitrary. It's pretty
29:03
Speaker 2: capricious with the minds of a jury who decides that.
29:06
Speaker 2: And that injects things like, well, people consider interracial crimes
29:11
Speaker 2: to be worse than others. People consider crimes against women
29:17
Speaker 2: to be worse than others. Just because that's their mindset,
29:21
Speaker 2: not necessarily the scienter or the or conduct with the defendant,
29:26
Speaker 2: it just becomes sort of a rolling of the dice.
29:30
Speaker 2: And I just don't think that's the sufficient basis for
29:33
Speaker 2: the state to kill somebody, which is what we're talking about.
29:37
Speaker 2: We're not talking about euthanizing somebody. You take them in.
29:40
Speaker 2: a room and kill them. I mean, I've seen the
29:43
Speaker 2: electric chair at Moundsville. It was retired, let's see, we
29:49
Speaker 2: did away with the death penalty in 64, and I
29:51
Speaker 2: started law school in 71, went up to, so yeah,
29:55
Speaker 2: it had been about seven or eight years since it
29:57
Speaker 2: was taken out of commission, and it was still in
29:58
Speaker 2: the room at moundsville is sort of an exhibit to
30:02
Speaker 2: let the public look at and before that they hung
30:05
Speaker 2: people um but it was still the same you know
30:10
Speaker 2: you see someone skilled what was obviously a crime in
30:13
Speaker 2: the heat of passion or something other than what you
30:17
Speaker 2: consider a classic premeditation and just by the caprice of
30:21
Speaker 2: uh 12 people at a particular time one dies one
30:25
Speaker 2: lives it's just really not uh The result we're looking for.
30:28
Speaker 2: That plus the fact it's going to be monumentally expensive
30:31
Speaker 2: for West Virginia, which is money we don't have. Although
30:35
Speaker 2: we may have the Space Academy, right? We spoke about
30:40
Speaker 2: that a little bit last week. That was because Hoppe's
30:46
Speaker 2: commentary on the bungle. I saw Roger Hanshaw gets a
30:50
Speaker 2: lot of mixed reviews nowadays. I know. Not really well,
30:54
Speaker 2: but I know him like Roger Hansel before he was
30:56
Speaker 2: in the politics and the law firm he practices with,
31:00
Speaker 2: good friends of mine, I mean, Charlie Love. But because
31:04
Speaker 2: of his representation of some data center developers, he's cast
31:09
Speaker 2: in a bad light. By many of it today, he expressed,
31:14
Speaker 2: what are my thoughts? Well, Governor, if you thought this
31:16
Speaker 2: was a good idea to put our name in for
31:18
Speaker 2: this nuclear campus, then why did you withdraw the thing
31:24
Speaker 2: As soon as they problem cropped up and you started
31:27
Speaker 2: to get some bad publicity about the way you presented
31:29
Speaker 2: it because you blew off about the newspaper about, well,
31:34
Speaker 2: we aren't going to take any waste. And then the
31:36
Speaker 2: newspaper publishes, well, you did, that's what you said in
31:39
Speaker 2: your application and just man up and say, well, you know,
31:43
Speaker 2: I was mad. I don't like Mike Tony. I think
31:47
Speaker 2: the Gazette is the morning sit call. It was labeled
31:50
Speaker 2: by Arch Moore. But this is a good thing for
31:53
Speaker 2: West Virginia, and we're going to soldier on here in
31:55
Speaker 2: the face of adversity. Instead, just throw up your hands
31:59
Speaker 2: and say, well, we're just out of the game. I mean,
32:01
Speaker 2: that was a mistake. To me, if you thought it
32:03
Speaker 2: was a good idea when you did it, don't chicken
32:06
Speaker 2: out when you get caught a little bit with your
32:08
Speaker 2: hand in the cookie jar. Double down.
32:10
Speaker 1: I feel like sometimes we don't treat. constituents like people
32:14
Speaker 1: like they're very smart because there's there's information out there
32:17
Speaker 1: on nuclear and nuclear storage and things like that you
32:19
Speaker 1: can point people to the information to let them do
32:21
Speaker 1: research do a public some sort of a public Q
32:24
Speaker 1: & A or something if you need to but you
32:26
Speaker 1: can make reasonable decisions people can just give them the
32:29
Speaker 1: information don't treat them like idiots.
32:30
Speaker 2: That's all that's necessary look we're talking about these data
32:33
Speaker 2: centers we mentioned that last week I've got a really
32:35
Speaker 2: good friend Charlie Denny was in my high school class
32:38
Speaker 2: I've been friends with Charlie for almost 70 years and
32:42
Speaker 2: because we lived in the same West side area of St. Albany.
32:45
Speaker 2: He was in Arbor land and I was on West
32:47
Speaker 2: main and Charlie's getting working on his PhD. Now he's
32:50
Speaker 2: been involved in the communication and computer and data processing
32:55
Speaker 2: all his life. He's working on a doctorate and he's
32:58
Speaker 2: just saying to me, Harvey, and I trust him. I mean,
33:01
Speaker 2: he said, this idea about water is just off base.
33:04
Speaker 2: It's not a big use. It's a closed loop system.
33:08
Speaker 2: I mean, The Gavin power plant over across the river
33:12
Speaker 2: in Cheshire, Ohio, has used a closed-loop cooling system for
33:15
Speaker 2: 60-some-plus years. There's information, there's data out there that people
33:23
Speaker 2: could have, but our legislature, for some reason, decided it
33:27
Speaker 2: was a good idea to keep all this secret. It
33:29
Speaker 2: puts a county commission down there in a heck of
33:31
Speaker 2: a situation. I suspect that... the commissioners, we don't care.
33:38
Speaker 2: We have an open process for our development authority. We'll
33:42
Speaker 2: sit here. We get paid to sit here and listen.
33:45
Speaker 2: But then you're confronted with the fact that, well, we
33:48
Speaker 2: don't have to give you this information, and the law
33:50
Speaker 2: says we can't. Why didn't we have a big production
33:53
Speaker 2: back in April when we submitted the application for the
33:55
Speaker 2: nuclear campus? And at Boone County, the Hobat site, which
34:05
Speaker 2: is Over a thousand acres is in Boone County and
34:09
Speaker 2: a road was developed in there at the instance of
34:12
Speaker 2: Governor Tomlin. I think with proper education and information, that
34:17
Speaker 2: could be a welcome thing in Boone County. Not, we're
34:19
Speaker 2: not going to make you a dump. Nobody would, I mean, we, this,
34:23
Speaker 2: this state owes a heck of a lot to Boone County,
34:26
Speaker 2: like they owe to Logan County, Wyoming, Mingo, uh, McDowell
34:31
Speaker 2: for pumping out billions and billions and billions of dollars
34:35
Speaker 2: worth of coal. over 100 and some plus years for
34:40
Speaker 2: politicians in Charleston to spend the money and not put
34:43
Speaker 2: anything back. And if we had a chance to put
34:45
Speaker 2: something back in Boone County, we should. But that wasn't done.
34:49
Speaker 2: I just, for somehow the idea of that secrecy or
34:56
Speaker 2: keeping information away from the public, it might be smoother
35:02
Speaker 2: for the politicians, but it's going to hurt the outcome.
35:05
Speaker 2: It just leads to a lot of hard feelings. I
35:08
Speaker 2: don't think it's any secret. I'm no fan of Donald Trump.
35:10
Speaker 2: But the fact about Trump is, you know what he's
35:13
Speaker 2: going to say. I mean, he says outrageous things all day,
35:17
Speaker 2: every day. And it gets debated and kicked around. And
35:23
Speaker 2: it may be, although some of the things are just
35:25
Speaker 2: so contrary to what I consider to be appropriate. Anyway,
35:30
Speaker 2: we have one minute. Now, we talked about it. bigger
35:34
Speaker 2: issues today. But if you have a C-level issue and
35:37
Speaker 2: you're listening or you know somebody in your family or
35:41
Speaker 2: friendship brain that has a C-level issue with an insurance company,
35:45
Speaker 2: they've been hurt in an accident, got a problem on
35:48
Speaker 2: the job, they're being harassed or discriminated against, or you
35:52
Speaker 2: just need some help in a problem that you perceive
35:55
Speaker 2: and you want to talk to somebody, that's what we're
35:58
Speaker 2: here for at the Peyton Law Firm. We have an
36:00
Speaker 2: office at 2801 First Avenue in Nitro. a nice office
36:04
Speaker 2: with a welcoming staff. You can go online at paytonlawfirm.com
36:09
Speaker 2: and send an email that only Tom or I see,
36:11
Speaker 2: and I promise we'll reply. You can give us a
36:14
Speaker 2: call at 304-755-5556, and one of the ladies at the
36:19
Speaker 2: office or Tom or I will answer the phone. We'll
36:22
Speaker 2: take your call. We try and return every call every day,
36:26
Speaker 2: or at least within a reasonable time. And if we
36:29
Speaker 2: don't keep that promise, you can call this show the
36:32
Speaker 2: next week And shame us for it, right? Which I
36:36
Speaker 2: don't think you can do with a lot of long-distance lawyers.
36:40
Speaker 2: We're here to help you. And all we can ask
36:43
Speaker 2: you to do is give the Peyton Law Firm a thought.
36:45
Speaker 2: And I think Tom will be here next week.