CHARLESTON, W.Va. -- A Hurricane man convicted of raping his then 5-year-old daughter nearly two decades ago is seeking to be released from prison for the second time, and his defenders say his "innocence is absolute."
West Virginia Public Defenders filed a petition for a writ of habeas corpus on behalf of Joe Lavigne Jr. in Putnam County Circuit Court in November. The West Virginia Innocence Project, a branch of the nationwide Innocence Project, has filed a similar petition on Lavigne's behalf at the federal level.
Lavigne, 55, was found guilty in 1996 and sentenced to 22 to 60 years in prison. His first petition for a writ of habeas corpus, filed by the Kanawha County Public Defenders Office, resulted in the reversal of his sentence by former Putnam County Circuit Judge O.C. Spaulding in 2011.
Lavigne spent more than a year free before the state Supreme Court overturned Spaulding's decision last year. In his decision, Spaulding wrote: "No reasonable jury can find proof of guilt beyond a reasonable doubt where the only evidence as to an essential element of the crime are contradictory, out-of-court statements by the accuser."
Greg Ayers, the retired public defender who represented Lavigne in his last habeas case, contends that there are even more factors that point to Lavigne's innocence than those tried in the last case.
"Joe's innocence is the most compelling fact in this case," said Ayers, who has since retired but has taken on the case pro bono. "Judge Spaulding was correct in his decision, but the Supreme Court decided otherwise."
The latest petition contends the most recent habeas court to try Lavigne, which freed him from prison for more than a year before the Supreme Court reversed its decision, did not address all of the issues raised by Lavigne's counsel. Its three main contentions, according to court filings, are that Lavigne's accuser, his daughter Katie Haught-Kelly, should have been declared an incompetent witness for her contradictory testimony, that she has since filed an affidavit declaring Lavigne was not her assailant, and that the state presented false testimony of Mark Berry, who they consider another potential perpetrator of the crime.
Berry, a Lincoln County man who was the subject of a murder trial when Haught-Kelly was assaulted, knew Lavigne and his wife, Jamie, who were slated to testify against him in court. In the 1996 trial, Trooper Donna McNeely testified that Berry had been on electronically monitored home confinement at the time of the assault, and that no alarm was triggered indicating Berry had violated home confinement. McNeely later admitted that Berry was not on electronic home confinement at the time and was not wearing an ankle bracelet.
"They had believed that Mr. Berry was on electronic monitoring at the time, and he was not, so having no electronic monitor alarms go off the day of the crime is basically irrelevant," said Lori Waller, the other Kanawha County public defender working on the case. "To the best of my knowledge, they had simply checked whether any electronic monitors had gone off, and that was the end of it."
Waller said she took on the case because she has a background in psychology and believes Haught-Kelly's inability to stand up to cross examination should have made her testimony inadmissible in court. Documents detailing pre-trial and post-trial cross examination of Haught-Kelly found the girl often described the assailant as someone who "looked like daddy," but denied her father was her attacker on several occasions.
The petition points out that at one point, the court reporter notes that when asked who her attacker was, Haught-Kelly looked toward her father. According to Waller, that inclusion was invalid because no attorney made note of it, and the court reporter went outside of ethical bounds to include it in the report.