Does This Man Deserve a Retrial?

[LadyTevar]

This case is once again causing a stir among my friends. I want to hear the board's opinion on the matter. Below are the facts of the case, as reported by the family's current legal counsel.

On Saturday evening, February 10, 1996, the Joseph Lavigne family and some friends played games in the recreation room of their home in Hurricane, West Virginia. The Lavignes' friends left around 12:30a.m., and Joseph Lavigne and his wife prepared for bed. Their three children had fallen asleep in the recreation room. Their mother gently covered them and left them sleeping before heading to bed herself. Due to pain caused by a recent car accident, the children's mother lay in bed awake until about 4 a.m. At that time, she got up, checked on the children who were still sleeping in the recreation room, turned off the recreation room lights, took some Tylenol, and went back to bed. Shortly after 5 a.m., she heard steps on the stairs and considered asking her husband, who was snoring beside her, to get up and check on the children. In the meantime, the house had become quiet again and she finally drifted off to sleep.

At 7:30 a.m., Joseph Lavigne -- nicknamed Joe -- went into the bathroom and found his five-year-old daughter there. He believed she had a case of diarrhea and called out to her mother for help. The mother ran a bath for the little girl while Joe went to clean up the recreation room. As the mother helped the little girl into the bath, she noticed that the dark substance they had thought was diarrhea was actually dried blood. While the mother was in the bathroom with the little girl, Joe noticed a blood spot on the recreation room floor. He then saw that the front screen door had been propped open by a brick and the front door was open.

Now concerned, both parents asked the little girl what had happened. The child said: "I fell down and got hurt." When the child noted their disbelief, she said, "A man took me outside and hurt my bottom. It was a daddy. A daddy carried me out to the church parking lot. He told me to take my clothes off or he would spank me. He stuck his pee-pee in mine."

The man had run away (in a direction away from the Lavigne home)with the child's clothes, so she returned home and went upstairs to get a nightgown. The little girl then returned to the recreation room where she had been sleeping peacefully when her mother had checked on her just a short time earlier. Later, she went into the bathroom because she said she thought she needed to have a bowel movement.

The child's parents called 911 to report the incident. The 911 operator asked them to try to find out more information from the child before the officers arrived. The parents questioned the little girl and asked her to describe as well as she could what the assailant looked like. She said he was wearing green blue jeans and had black hair. When she was questioned about the length of the man's hair, she said that it "was like Daddy's before he cut it."

An ambulance arrived before the police officers. The ambulance driver immediately walked over to the church parking lot to see where the rape had occurred. When the police arrived, the little girl and her mother were taken to the hospital by ambulance. During the ride to the hospital, the girl repeated that "a" daddy had taken her outside.

Shortly after the ambulance arrived at the hospital, a doctor questioned the little girl once again. In the presence of two doctors, the child reported that a man "that really looked like my daddy" had carried her outside to the church parking lot, put her on the grass, took her pants off and "put his pee-pee in mine." The child said that the man had black hair and was wearing green blue jeans and a shirt that "looked like my daddy's." She further described the shirt the man was wearing as gray with little black dots on it. She described him as having "black peachy" skin and having "a little hair on his face," which she illustrated by pointing with her hand to her chin. When the doctor asked the child if she had seen the man before, she said no.

During the hospital interview, the mother recounted the events from her perspective. When the mother mentioned that she had heard steps on the stairs, the child said, "That was me."

The surgery that was performed on the girl to re-create a vagina and rectum lasted five hours -- she had been badly damaged by the rape. Rape-kit evidence was gathered and included 110 rape-kit evidence swabs. The little girl's mother was told that the child's insides had "lit up like a light bulb" when preliminary test lights showed the presence of semen.

Joseph Lavigne remained at home where the police questioned him and searched the family home. Later that Sunday, he was charged with First-Degree Sexual Assault, Sexual Assault Resulting in Serious Bodily Harm, and Incest.

Although the parents asked them to do so, the police did not take fingerprints from either the screen door or the front door of the family's home. The police also refused to cordon off the church parking lot and allowed church members to use the lot. The police searched the church parking lot after the church service. They found nothing. During the days following the incident, police and volunteers searched the surrounding area for the child's clothes. Again, they found nothing. According to a witness, a red truck had been parked in the church parking lot that Saturday night and was still there at 5:30 a.m. on Sunday. No one knows who owned the truck. There was no attempt to find any other suspects or even to check on the activities of known sex-offenders living in the area.

In an interview with the West Virginia State Police, the child told them that the assailant looked like daddy, but she didn't know him. The child helped a police artist draw a composite picture of the assailant. The picture looked nothing like Joseph Lavigne. The little girl said the rape took place on the grass, and she drew a map that showed pine trees between the church parking lot and a house that is owned by the church.

In a subsequent taped interview, she told an officer that the assailant "looked like" Daddy. When she was asked a second time who the assailant was, she cried in frustration, "I don't know his name!" When asked a third time, "Was it Daddy?" she cried out, "I don't know!"

Joseph Lavigne's trial was held immediately after elections. This enabled the newly re-elected judge and prosecutor to use the publicity surrounding the case to assist in their re-election without the risk of losing the case beforehand. The media's coverage of the case was intense, and it was impossible to find jurors who had not read about it. Joseph Lavigne's lawyer felt the prejudice of the judge and made pretrial statements to Joseph like "I have to work in this county" and "I don't want to upset the judge, or he'll just rule against us in later motions." She did not get independent DNA testing or independent psychological testing for Joseph or the little girl.

Witnesses were called in to testify at the trial to the events of that early Sunday morning. The 911 operator testified (this was hearsay.) that the parents had reported to her that the child had said that Daddy had done it.

A police officer testified that two of the swabs from the rape-kit had been tested for DNA and that no DNA evidence had been found. This same officer has since admitted in court that he had falsified DNA tests in other cases and claimed to have tested material that he had not tested. The police also managed to lose several very important items from the rape-kit. These lost items included two wooden objects that had been found inside the little girl's body during surgery. Doctors at the hospital believe that these wooden objects could very well have had semen on them.

Also presented as evidence were a pair of green army pants that had been found at the Lavigne house. The pants were marked with circles around oil stains. They were size 34 and no longer fit Joseph, who was a size 38. There was no evidence of semen or blood on the pants. The clothes Joseph was wearing that day were submitted as evidence, but there was nothing on them that related to the crime.

Pictures of the child's injuries were submitted as evidence. These proved that the crime was indeed horrible, but there was nothing about the pictures that pointed to Joseph. The tapes of her three interviews were also submitted as evidence.

During a hearing in the judge's chambers with the lawyers and Joseph present, the child was interviewed by the judge. She was happy to see her father, showed him her missing tooth, and tried to give him a picture she had drawn. Never wavering from her original story, she told the judge the assailant "looked like" Daddy, that she did not know the assailant's identity, and that Daddy had been in the house.

Later that day -- after the court spectators had been removed -- the little girl was taken into the courtroom in the presence of the jury and reporters. Although she was frightened, she again never wavered in her telling of her story. She told the jury that the assailant "looked like" Daddy (pointing at him), that she didn't know his identity, and that Daddy had been in the house.

The state argued that the little girl would have run to her parents for help if she had not believed her daddy was the one who had hurt her. They provided no evidence that this would have been normal behavior for this child. This particular child had always been known to be very independent. They did not ask the little girl why she didn't ask for help.

The state also argued that the reason Joseph Lavigne wanted additional DNA testing was because he had managed to wash every trace of DNA away and he knew that any DNA test would be negative. The state also said that Joe's skill in the board game Strategy would allow him to commit and cover up a major crime. However, Joe exhibited no special "Strategy skill" when he was speaking to the 911 operator.

The judge's instructions to the jury were: "You folks are the triers of the facts. If you disagree with the judge, of course, I've never made a mistake, but I could. Thus if you believe the testimony of the child beyond a reasonable doubt, you may return a verdict of guilty as appropriate under the indictment."

On November 20, 1996, Joseph Lavigne was sentenced to a 2- to 10- year sentence and a 5- to 15-year sentence to be served consecutively, as well as a 15-to 35-year sentence to be served concurrently.

During post-trial counseling sessions, the child has maintained that Daddy was not the man who had raped her.

On December 12, 1996, the West Virginia Department of Health and Human Resources removed the Lavigne children from their mother's care and placed them in foster care. The same judge who had presided over her husband's trial insisted on presiding over these hearings. Numerous witnesses testified that Joe's wife had a loving, nurturing and healthy relationship with all three of the Lavigne children -- both before and after the rape of the little girl. On August 21, 1997, the judge terminated the wife's parental rights. His stated reason was that, by supporting the innocence of the father, the wife belittled and destroyed the credibility of the daughter.

Neither of the Lavignes are allowed visitation rights, and another family has permanently adopted the Lavigne children. The oldest child is currently in a juvenile detention center and starving himself to death. He insists he will only eat his mother's cooking.

The time is now to help clear Joseph Lavigne and bring his family back together. A year ago, Joseph Lavigne requested an attorney. The head public defender of Kanawha County, West Virginia, expressed an interest in the case. Judge Clarence Watt, who presided over Joseph Lavigne's trial, continues to hold onto this case and his signature is necessary for Joseph to be allowed an attorney.

[Brother-Captain Gaius]

Sweet mother of god, since when did that constitute "Beyond a Reasonable Doubt"?! While there are some suspicious elements that might point toward Joe here, that in no way justifies a guilty verdict. Especially when the most convincing evidence is "He looked liked Daddy," from a traumatized girl. What the fuck happened to innocent until proven guilty?

The state also said that Joe's skill in the board game Strategy would allow him to commit and cover up a major crime.

Z0mG TEH GAMEZZZ R TEHB EVILL LZZZLOLR

[Ace Pace]

What the FUCK? Who the fuck are these incompetent idiots? Strategy games gave this guy an ability to get away with this?

Its plain the prosecution here acted like idiots.

[Base Delta Zero]

The state also said that Joe's skill in the board game Strategy would allow him to commit and cover up a major crime.

I third the WTF on this one... Definently needs retrial, don't they have genetic analysis for this stuff? And saying that a board game is somehow going to help him cover up a crime... just... horribly stupid.

[mr friendly guy]

Going by what the article said, I would have to say yes.

No DNA evidence connects Joseph to the crime. Well thats ok. He obviously was a criminal mastermind and knew how to cover it up. Next time someone makes a claim with no evidence I can just dismiss it as someone covered up the evidence.

Vague description by the girl of her assailant. He looked like daddy but he wasn't? We could interpret it as self contradictory from a girl who wasn't apt at describing things. Or we could interpret it to be someone who has some similarities to Joseph. Perhaps the same skin colour, or hair style. Given that the identikit picture looked nothing like the accused it seems like the prosecution was clutching at straws. On another note, now that the girl is now 13, perhaps we could try asking her in what way did the man looked like daddy.

Arguing that the little girl would have run to her parents for help if she had not believed her daddy was the one who had hurt her. That reasoning frankly is just retarded and smacks of a complex question fallacy.

He may or may not be guilty, but I don't really see how you can make a guilty verdict from the evidence presented by the prosecution.

[LadyTevar]

The state also said that Joe's skill in the board game Strategy would allow him to commit and cover up a major crime.

I third the WTF on this one... Definently needs retrial, don't they have genetic analysis for this stuff? And saying that a board game is somehow going to help him cover up a crime... just... horribly stupid.

Re-read the article, hon. They *did* a full rape kit on her. There were even two small wooden objects found inside her during the surgery to repair her injuries.

The surgery that was performed on the girl to re-create a vagina and rectum lasted five hours -- she had been badly damaged by the rape. Rape-kit evidence was gathered and included 110 rape-kit evidence swabs. The little girl's mother was told that the child's insides had "lit up like a light bulb" when preliminary test lights showed the presence of semen.

The problem was in the Forensics Lab.

A police officer testified that two of the swabs from the rape-kit had been tested for DNA and that no DNA evidence had been found. This same officer has since admitted in court that he had falsified DNA tests in other cases and claimed to have tested material that he had not tested.

I believe this same officer was later put on trial in Texas for falsifying evidence in a murder trial after he transfered to that state.

[Jew]

If the jury was presented with all the evidence and still returned a guilty verdict, then there is no legal basis for a retrial based on the evidence. Just because we don't think the evidence is sufficient does not mean the jury did not think so.

Convictions are generally overturned on technicalities, such as improper procedure by the judge or the prosecution. In this case their best shot would be to appeal on the grounds that the judge was not impartial, that the jury selection process was flawed, and that the testimony of the officer who tested the DNA is untrustworthy. Any of those could get the conviction overturned, if an appeals judge agrees.

But you aren't allowed to re-try a case simply because the jury returned the "wrong" verdict.

[LadyTevar]

If the jury was presented with all the evidence and still returned a guilty verdict, then there is no legal basis for a retrial based on the evidence. Just because we don't think the evidence is sufficient does not mean the jury did not think so.

Convictions are generally overturned on technicalities, such as improper procedure by the judge or the prosecution. In this case their best shot would be to appeal on the grounds that the judge was not impartial, that the jury selection process was flawed, and that the testimony of the officer who tested the DNA is untrustworthy. Any of those could get the conviction overturned, if an appeals judge agrees.

But you aren't allowed to re-try a case simply because the jury returned the "wrong" verdict.

I don't think they're arguing the jury, my friend. I think they're arguing the police and judge's bias. The fact that the Forensic Officer later admitted to falsifying evidence in many of his cases should have cast doubt on every trial he'd testified in.

Makes me wonder if any other trials from that time have been questioned or forced to re-try the defendant.

[Edi]

If the jury was presented with all the evidence and still returned a guilty verdict, then there is no legal basis for a retrial based on the evidence. Just because we don't think the evidence is sufficient does not mean the jury did not think so.

Convictions are generally overturned on technicalities, such as improper procedure by the judge or the prosecution. In this case their best shot would be to appeal on the grounds that the judge was not impartial, that the jury selection process was flawed, and that the testimony of the officer who tested the DNA is untrustworthy. Any of those could get the conviction overturned, if an appeals judge agrees.

But you aren't allowed to re-try a case simply because the jury returned the "wrong" verdict.

Cases like that can either be overturned completely on appeal, or the appeals court will order a retrial. So one or the other anyway.

Edi

[wolveraptor]

At 7:30 a.m., Joseph Lavigne -- nicknamed Joe -- went into the bathroom and found his five-year-old daughter there. He believed she had a case of diarrhea and called out to her mother for help. The mother ran a bath for the little girl while Joe went to clean up the recreation room. As the mother helped the little girl into the bath, she noticed that the dark substance they had thought was diarrhea was actually dried blood. While the mother was in the bathroom with the little girl, Joe noticed a blood spot on the recreation room floor. He then saw that the front screen door had been propped open by a brick and the front door was open.

Why would he attract the attention of his wife if he was the rapist? Why would he open the door with a brick if it's his own damn house? Why wouldn't he have worn some disguise it was him? He's supposed to be a "criminal mastermind" who can win at Strategy, after all.

This case stinks of bullshit.

[LadyTevar]

The article did give an address for people to write to and protest. I've already sent in my own letter, asking the judge to allow a new trial.

[Ryushikaze]

Sounds incredibly sketchy, including the fact that the officer has admitted to such things in other cases. Give the parents another chance.

[Keevan_Colton]

The fact that the judge is refusing to allow the case to be released sounds utterly fucked up.

[LadyTevar]

The fact that the judge is refusing to allow the case to be released sounds utterly fucked up.

I think it falls under this quote:

The judge's instructions to the jury were: "You folks are the triers of the facts. If you disagree with the judge, of course, I've never made a mistake, but I could.

[Base Delta Zero]

I third the WTF on this one... Definently needs retrial, don't they have genetic analysis for this stuff? And saying that a board game is somehow going to help him cover up a crime... just... horribly stupid.

Re-read the article, hon. They *did* a full rape kit on her. There were even two small wooden objects found inside her during the surgery to repair her injuries.

Oops... I read that, but I didn't realize that involved DNA testing... should have, but it didn't register.[/quote]

[LadyTevar]

I third the WTF on this one... Definently needs retrial, don't they have genetic analysis for this stuff? And saying that a board game is somehow going to help him cover up a crime... just... horribly stupid.

Re-read the article, hon. They *did* a full rape kit on her. There were even two small wooden objects found inside her during the surgery to repair her injuries.

Oops... I read that, but I didn't realize that involved DNA testing... should have, but it didn't register.

That's what a rape-kit is for, to collect evidence to use in such testing. They took over a hundred swabs to test. The officer testified he tested only two for DNA and found them useless, when in truth he tested none at all. Those swabs, if they still exist, could prove Joe's full innocence.

[Batman]

The strategy game point has already been burned to cinders (and rightfully so) so I'll not belabor that any more.
What has me moderately flabbergasted is this:

"You folks are the triers of the facts. If you disagree with the judge, of course, I've never made a mistake, but I could. Thus if you believe the testimony of the child beyond a reasonable doubt, you may return a verdict of guilty as appropriate under the indictment."

Um- unless I missed something painfully obvious, the testimony of the child was that she didn't know him, and that he looked 'somewhat' like Daddy ('somewhat' in this case leading to a picture that looked nothing like her father), with post-trial statements to the fact that it wasn't him.
How, pray tell, does the testimony of the child support a 'guilty' verdict?

[General Zod]

The strategy game point has already been burned to cinders (and rightfully so) so I'll not belabor that any more.
What has me moderately flabbergasted is this:

"You folks are the triers of the facts. If you disagree with the judge, of course, I've never made a mistake, but I could. Thus if you believe the testimony of the child beyond a reasonable doubt, you may return a verdict of guilty as appropriate under the indictment."

Um- unless I missed something painfully obvious, the testimony of the child was that she didn't know him, and that he looked 'somewhat' like Daddy ('somewhat' in this case leading to a picture that looked nothing like her father), with post-trial statements to the fact that it wasn't him.
How, pray tell, does the testimony of the child support a 'guilty' verdict?

Child testimony is always dodgy at best, especially considering with children as witnesses there's the possibility of them being led on, unintentionally or intentionally. Depending on the way the person asking the questions handles it.

[Batman]

Child testimony is always dodgy at best, especially considering with children as witnesses there's the possibility of them being led on, unintentionally or intentionally. Depending on the way the person asking the questions handles it.

I understand that, but even so, shouldn't that make the poor girl's statements inconclusive and/or unreliable, as opposed to supporting a guilty verdict?
"The girl said she didn't know the guy and her description didn't match her Dad but since kids are easily manipulated hemust be the one what did it' doesn't sound like a particularly reasonable train of thought to me.
Especially as, at least from the material presented, I fail to find any evidence indicating he was the one what did it.
Like I said, I'm probably missing something obvious.

[General Zod]

Child testimony is always dodgy at best, especially considering with children as witnesses there's the possibility of them being led on, unintentionally or intentionally. Depending on the way the person asking the questions handles it.

I understand that, but even so, shouldn't that make the poor girl's statements inconclusive and/or unreliable, as opposed to supporting a guilty verdict?
"The girl said she didn't know the guy and her description didn't match her Dad but since kids are easily manipulated hemust be the one what did it' doesn't sound like a particularly reasonable train of thought to me.
Especially as, at least from the material presented, I fail to find any evidence indicating he was the one what did it.
Like I said, I'm probably missing something obvious.

You'd think it would, but considering the apparent competence of the courtroom that tried him in this case. . . *shrug*

[CelesKnight]

I abstain from voting. Not because I don't care, but rather because I don't wish to give an opinion of if he should get a retrial or not based on this article.

I would assume that there is evidence of guilt, but the defense council isn't going to point that out in an article they've written. And natuarally they're going to present all of the evidence (real or imagined) of innocence, police incompetence, or judical bias.

I think that the appeals judges and executive officals, who can see all the evidence, are the best judge of if he should get a new trial or not.

[CelesKnight]

The girl must be 15 by now. Has she ever made any statements in the years since it happened?

[Zero]

This just seems like either gross incompetence on the part of the judge, and the police, or like they're emitting something immensely important from being known by the public. Either way, somethings up with that jury, if that's the evidence they were presented with...

[General Zod]

The girl must be 15 by now. Has she ever made any statements in the years since it happened?

Considering she was a child when it happened, and thus her testimony was unreliable at best, what makes you think she'd have any better recollection several years after the fact?

[CelesKnight]

Considering she was a child when it happened, and thus her testimony was unreliable at best, what makes you think she'd have any better recollection several years after the fact?

It's difficult to tell if if the problems with the statements came from not remembering, from lack of ability to articulation what she remembered, or maybe even fear.

I honestly don't know if any statements she's made since then can be trustworthy, and I certainly wouldn't accept them as proof positive. Nor do I know if she even wants to make any statements. None the less, if she has ever made any statements, her thoughts could shed light on the situation.