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The baffling, frustrating Lavigne case

In my 60 years at the Gazette, I've covered a lot of crime and justice cases -- but only one has touched my own family.

I think a tragic mistake occurred in Putnam County's controversial Joe Lavigne case. I think he was wrongly convicted of a hideous rape he didn't commit, then temporarily cleared after 15 years in prison, but now he's back in a cell. I think the case against him was so flimsy it never should have been filed.

Journalism ethics say I shouldn't write these things, because Lavigne is my son's brother-in-law, and I'm not supposed to discuss my relatives. But no other writer knows the story as personally -- so here goes:

On a February night in 1996, Lavigne's 5-year-old daughter Katie was taken from their Hurricane home and brutally raped on a church lawn across the street. The attacker took her clothing, which never was found. The little girl returned to the family bathroom and tried to cope with her bleeding. The father woke at dawn, found her, and yelled for his wife.

The child reportedly said a man "took me outside and hurt my bottom." She said the attacker "looked like Daddy" and his hair "was like Daddy's before he cut it." However, she also said it was

her father. This was the beginning of various contradictory, confusing, erratic statements. She said the assailant took her clothes and ran off in a direction away from the home -- yet Lavigne was inside when she returned. The father had no blood spatters, scratches, grass stains or other evidence of outdoor activity.

Lavigne frantically dialed 911 and told the dispatcher: "She says it was someone who looks like me. Actually, she says it was me."

That statement apparently doomed him, because Hurricane police hardly sought other suspects. They didn't take fingerprints from doorways where a rapist might have entered. They barely searched for a red pickup truck seen on the church parking lot during the night. They didn't secure the lot for evidence. They didn't question registered sex offenders living nearby.

At a hospital, five hours of surgery were required to repair Katie's damage. She told doctors the attacker "really looked like my Daddy." The hospital reportedly found wood scraps inside the child, but no semen testable for DNA.

Lavigne cooperated almost eagerly with state and local police -- which ended with his arrest. Sometimes Katie said the attacker was her dad, or said he "looked like" her father, or said she never had seen the man before. During a videotaped interview with Trooper Donna Ashcraft in the hospital two days after the assault, Katie shook her head no when asked if she knew her assailant. Another videotaped interrogation two months later with Hurricane officer Ron Smith included this:

Officer: Who did this to you?

Katie: I don't know what his name is.

Officer: Have you ever seen him before?

Katie: No.

Defense attorneys later speculated that when the sleeping tot was carried outside, she may have drowsily thought the man was her dad. She was assaulted face-down and couldn't see him then.

During the trial, a prosecutor asked the little girl: "We need to know, really, who did this to you. Do you remember?"

Katie answered: "I don't know."

A court reporter recorded that the child glanced at her father in the courtroom, but neither the judge nor attorneys mentioned such a glance.

Doctors, paramedics and officer Smith testified that she previously declared her father was the attacker. The judge, the late Clarence Watt, instructed jurors that "if you believe the testimony of the child beyond a reasonable doubt," they could convict Lavigne.

However, the official testimony of the child was that she didn't know the rapist. The only contrary statements were related indirectly by others.

Lavigne was convicted on three counts and sentenced to a total of 20-to-50 years in prison.

A year later, Judge Watt revoked Lavigne's wife's custody of Katie and two brothers -- and that's when I entered the story. My son Joel is married to Joe Lavigne's sister, Lori, and we lived in side-by-side homes at Lake Chaweva. Joel and Lori adopted the three parentless children, and they grew up Huckleberry Finn-style amid the lake's beaches, docks, creeks and woods.

As a foster grandfather, I spent years taking Katie and brothers to hotdog roasts in the hills, hiking to wild rock formations, and the like. We discussed every imaginable topic -- but Katie never mentioned her attack, and I never asked. She slowly grew into a lovely young woman, moved to Ravenswood, married and had a baby.

Through the years, I heard the Lavigne clan agonize over Joe's plight (although I never actually met him). Various groups akin to the famed "Innocence Project" examined his case and wrote that he had been wrongly convicted. During this period, Hurricane officer Smith mysteriously was fired for reasons never made public.

Three years ago, the Kanawha Public Defender office persuaded Putnam Circuit Judge O.C. Spaulding to review the case. The highly respected judge spent more than a year studying the record, then delivered a bombshell: Spaulding said there never had been enough evidence for a conviction. He 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."

As for Katie's alleged courtroom glance, the judge said he was forced to conclude "that the look, in fact, did not happen."

Spaulding freed Lavigne, pending a new trial. Meanwhile, Katie publicly declared that, although her long-ago memories are blurry, she never thought her father attacked her. My son posted his Lake Chaweva houses for Joe's bail.

The Lavigne family was overjoyed by his release. I finally met Joe, a former Army paratrooper, and he seemed a bright, affectionate, decent, caring person. He got a job and was reunited with Katie and her new daughter. He behaved like a genuinely loving father. By this time, my wife had died and I had moved uptown, so Joe began staying at my vacant Lake Chaweva cottage.

All of us felt the nightmare was over. No new trial could be held, since Katie would testify that her father didn't do it. But the Putnam prosecutor appealed Judge Spaulding's ruling to the state Supreme Court, where all five justices unanimously said Spaulding had been wrong to reverse the conviction. After a year and a half of freedom, Joe went back to prison.

Now what? Can anything be done to change what I think is an error of justice? He already has served 15 years behind bars, and now faces more years. The situation is a frustrating dilemma. During this long mess, I've kept my hands off Gazette news coverage of the case -- but I feel an urge to voice a cry for help.

Haught, the Gazette's editor, can be reached by phone at 304-348-5199 or email at haught@wvgazette.com.


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