CHARLESTON, W.Va. -- The West Virginia Supreme Court has decided it will hear oral arguments on the reversal of Joseph Lavigne Jr.'s conviction.
Lavigne was found guilty of the brutal rape of his then 5-year-old daughter in 1996. He spent 15 years in prison and was released in May 2011 after then Putnam County Circuit Judge O.C. Spaulding overturned his conviction and gave him a new trial.
Putnam County prosecutor Mark Sorsaia appealed Spaulding's decision to the Supreme Court, which could have simply issued a ruling based on briefs filed by both sides in the case.
At 10 a.m. Oct. 23 at West Virginia Wesleyan College in Buckhannon, Sorsaia and Lavigne's attorney, Greg Ayers, a Kanawha County public defender, will each have 10 minutes to argue the case before the high court.
Under the new rules for appellate procedure, the Supreme Court could also request further arguments be made in the case.
"This case is well briefed. They [the Supreme Court] have the issues in front of them. I think oral arguments are an opportunity for them to ask questions," Sorsaia said.
"I've written a brief and basically given the court reasons why they should affirm the Circuit Court's ruling," Ayers said.
In granting Lavigne's habeas corpus 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 Lavigne to four character witnesses fatally harmed his case.
Spaulding's ruling that the victim did not identify Lavigne in court resulted in a ruling that there was insufficient evidence to convict him. If that ruling stands, Lavigne would be freed without another trial, because of the double jeopardy clause in the U.S. Constitution, which prevents people from being tried for the same crime twice.
Sorsaia and Ayers said Wednesday the Supreme Court has three options: reverse Spaulding's decision sending Lavigne back to prison to finish his 22- to 60-year sentence, uphold the Circuit Court's ruling and Lavigne would remain free, or rule on individual parts of Spaulding's decision, possibly leading to a new trial.
Lavigne was released last year after posting $150,000 bond. He has been working for the Kanawha Institute for Social Research & Action Inc. since December 2011, according to his Facebook page.
Reach Kate White at kate.wh...@wvgazette.com or 304-348-1723.