CHARLESTON, W.Va. -- The state Supreme Court will hear arguments Oct. 23 in the case of a Putnam County man who may have wrongly served 15 years in prison for the brutal rape of his then 5-year-old daughter.

Joseph Lavigne Jr. was released from prison last year after now-retired Putnam Circuit Judge O.C. Spaulding granted his habeas corpus petition, finding there was insufficient evidence to convict him. Lavigne was released from prison on bond following that decision.

Putnam County Prosecuting Attorney Mark Sorsaia has appealed Spaulding's ruling, asking the court to reinstate the conviction.

In 1996, a Harrison County jury found Lavigne guilty of sexual assault and incest. The trial was moved from Putnam County because of pretrial publicity. Lavigne was sentenced to 22 to 60 years in prison.

In granting Lavigne's petition, Spaulding said the father of three had been denied a fair trial because the victim did not identify her father as her attacker in court. He also found that a jury instruction was improper, and limiting him to four character witnesses fatally harmed his case.

The high court is faced with three issues in the appeal.

First, it must determine if Spaulding was correct that there was insufficient evidence at trial to convict Lavigne, because his daughter didn't identify him at trial as her assailant.

If the court finds that ruling was correct, Lavigne will be freed because the double jeopardy clause of the U.S. Constitution forbids a retrial.

If the court were to reverse Spaulding's ruling and determine that the evidence was sufficient for a jury to decide the case, then Lavigne would be granted a new trial. If the court does that, it will also decide two other issues Spaulding raised.

Spaulding ruled that a jury instruction was improper because it misled the jury about what the state was required to prove. Further, Spaulding wrote that the trial court was wrong to limit the defense to only four character witnesses under the circumstances of the case.

If the court finds there was sufficient evidence to convict, but that the trial court shouldn't have given the jury instruction or shouldn't have limited the number of character witnesses, Lavigne would be given a new trial.

The briefs filed by the parties indicate that the number of character witnesses allowed in a criminal case is up to the trial judge in each case. The Supreme Court could take this opportunity to further illuminate how judges in future criminal cases are to decide how many character witnesses to allow.

Lavigne's attorney during the 1996 trial had subpoenaed 12 character witnesses to testify on his behalf, but only four were permitted. Public defender Greg Ayers now represents Lavigne.

Ayers and Sorsaia will have 10 minutes each to argue Tuesday. The Supreme Court will hear that argument, among others, at West Virginia Wesleyan College in Buckhannon.

Reach Kate White at kate.wh...@wvgazette.com or 304-348-1723.