For many generations of West Virginia lawyers, August was traditionally a month when the courts were basically closed. It was the month lawyers and judges took their vacations. Although this tradition has eroded, in keeping with the spirit of August, I will forego serious matters in this month's column, and indulge in a bit of light-hearted reminiscing. The following "war story" comes from my "young whippersnapper" days as Director of the North Central West Virginia Legal Aid Society.

At our multi-county legal aid office, we could only represent clients in civil matters, not in criminal matters. Nevertheless, we had our share of people coming in the door who were unaware of this limitation. One such fellow I'll call "Smitty." Smitty lived outside of a small county seat. Smitty was about 35 years old, legally blind (though he drove his truck regularly), a great fisherman (mostly followed the trout stocking trucks), quite friendly, and favorably regarded in his community. He had been charged with arson of the dwelling house where he and his somewhat older lady-friend "Margaret" lived.

Smitty asked me if I would represent him in the criminal case. Although it was outside our "funded for" jurisdiction, I took a liking to Smitty, so I decided to take annual leave from Legal Aid and represent him for free.

Allan Karlin had just come to Morgantown from UCLA Berkley, and joined our legal aid staff. Karlin, then sporting a gigantic Zapata-style moustache, agreed to help me with Smitty's case. Both of us were taking on a task that we had never performed before -- a major jury trial. It may have been my first jury trial in a circuit court. But I looked forward to the challenge.

We had an able law student working at the office at the time -- Bill Pepper. (We trained him how to do bankruptcy proceedings, and he has since made a great living specializing in bankruptcies.) Bill agreed to help us prepare the case.

We did a good job in finding witnesses, including three experts. We properly interviewed and prepared our witnesses. We divided the responsibilities at trial between Allan and myself, with Bill as our helper. For the trial we took a small local motel room with Allan and I claiming the beds and law student Pepper relegated to the floor.

Before I let you in on the outcome of the trial, consider these facts:

1. After the house that Smitty and Margaret lived in caught fire, while firefighters were at the house dousing the blaze, several firefighters saw Smitty slowly drive by.

2. There was evidence that Smitty had previously threatened to burn the house down -- and that he had started a fire in a bathroom trash can a few days earlier.

3. Smitty was not married to Margaret on the night of the fire, nor when the matter went to the Grand Jury a few weeks later. BUT HE WAS MARRIED BEFORE THE PETIT JURY TRIAL! (And not on the advice of counsel, but it helped -- no testimony by Margaret.)

4. The night of the fire, after Smitty passed the burning house, he drove into town to the home of his "Uncle Joe," who happened to be the mayor. Smitty was excited, and he told Uncle Joe: "Joe, I shot Margaret and I burned the house down!" Joe tried to calm Smitty down, but he darted off. (By the way, Margaret had not been shot.)

5. Smitty proceeded to the Sheriff's home/jail/office, where he announced to the Sheriff the same news that he had proclaimed to Uncle Joe. This time Smitty added: "Lock me up." The Sheriff accommodated him.

6. Smitty had recently had an eye operation. He was legally blind, but still drove his truck. He was on the drug prednisone for inflammation. He also had a drinking problem, and had been warned that prednisone and alcohol did not mix. He also had been drinking heavily on the afternoon of the fire -- and had been quarreling with Margaret.

7. We decided we needed a shrink. I talked Joel Allen into being our witness for a total of $200.00 -- his first, and our first, expert witness experience. Joel decided that Smitty suffered from --- I think -- an "hysterical reaction." We were told that this was a condition where a person may believe that he did something that he had thought about doing -- but actually he did not do it. It fit our case.

8. We also needed a pharmacologist, or a least a pharmacist, to discuss the effect of booze and prednisone. We asked a local pharmacist who believed in Smitty, and who educated us -- but he was unwilling to testify. I called on my friend Carl Malanga, a professor of pharmacology at WVU. He testified as an expert for free, I believe. (But he embarrassed me at trial. After providing very helpful testimony, as he was dismissed from the witness stand, Carl walked by our counsel table, patted me on the shoulder and said, quite audibly to the jury, "Good luck, Larry." Lesson: do a better job in preparation of witnesses.)

9. We had a theory for how the fire started -- a dirty, uncleaned Warm Morning Heater. So I went to the local Firestone Store that sold that type of heater and talked with the owner. After a series of "possibilities," with which he seemed to fully agree, I asked the store owner if we could hire him as an expert on Warm Morning Heaters and the possible causation of the fire.

He said: "Nope!" I asked why, and he said: "Because I was the foreman of the Grand Jury that indicted Smitty, and I think he did it." Luckily, I was able to recruit the town's retired former Fire Chief. He was a good witness . . . he convinced me that the faulty heater was the cause of the fire. But then again, I wanted to believe it.

There were many more interesting/funny facts about the trial, but these give the gist and flavor of how things went.

Now to the outcome. We tried the case for 4 days, and got -- a hung jury!

In a word: Victory!

It was Karlin's precise, penetrating examination of witnesses, and my emotional, pleading, closing argument that carried the day. Bill Pepper was "no help" in the courtroom. He only angered the judge by attempting to thumbtack a visual for Allan onto a door frame near the jury box -- Bill got a lecture from the judge on "damaging public property."

We promised the prosecutor a 2-week trial, if we had to do it again. He chose not to re-try. Smitty is still free!