News 12.13.13

West Virginia Man Claims Innocence of 1996 Rape, Seeks Release from Prison

A West Virginia Man who was convicted in 1996 of raping his then 5-year-old daughter is seeking to be released from prison with help from West Virginia Public Defenders and the

West Virginia Innocence Project

.

 

The

Charleston Gazette

reported that Joe Lavigne Jr.’s legal team has filed petitions for relief in Putnam County Circuit Court as well as in Federal Court.

 

This is not the first time a petition for a writ of habeas corpus was filed on Lavigne’s behalf. The first one, submitted 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.

 

According to the Charleston Gazette: “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.’ ”

 

But after just over a year of freedom, the state’s high court overturned Spaulding’s decision.

 

The latest petition contends that the most recent habeas court to try Lavigne did not address three main contentions raised by Lavigne’s counsel: that his daughter Katie Haught-Kelly should have been declared an incompetent witness for her contradictory testimony; that she has since filed an affidavit declaring her father was not her assailant and that the state presented false testimony of Mark Berry, who is considered another potential perpetrator of the crime.

 

At the 1996 trial, a police officer testified that Berry was being electronically monitored on house arrest at the time Haught-Kelly was assaulted and that no alarm was triggered indicating he left his house. The same officer later admitted that Berry, who was the subject of a murder trial, was not on electronic home confinement. He was acquainted with Lavigne and his wife, Jamie, who were slated to testify against him in court.

 

Lori Waller, one of the public defenders representing Lavigne, said that he gave DNA samples to police and that there is no biological evidence connecting him to the crime. Lavigne also requested that police take fingerprints from the window of the room where his daughter was found, but prints were never recovered from the scene.

 

Waller said to the

Gazette

: “Some of the evidence has not been preserved properly, and even if at that time it couldn’t be fully tested, the advancements in DNA testing would probably allow us to do that at this juncture . . . I believe we have one hair. Everything else was either stored improperly or consumed in the process of testing.”

 

Lavigne is now awaiting a decision from Putnam County Circuit Court as to whether the case will be tried again. According to the state Division of Corrections website, he will be eligible for parole in 2017.

 

Read the

full article

.

 


Read more about evidence preservation

.

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