Justice: Denied -- The Magazine for the Wrongly Convicted

 

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The Case of Joseph Lavigne, Wrongly Convicted of Raping His Five-Year-Old Daughter

Edited by Barbara Jean McAtlin

On Saturday evening, February 10, 1996, the Joseph Lavigne family and some friends played games in the recreation room of their home in Hurricane, West Virginia. The Lavignes' friends left around 12:30 a.m., and Joseph Lavigne and his wife prepared for bed. Their three children had fallen asleep in the recreation room. Their mother gently covered them and left them sleeping before heading to bed herself. Due to pain caused by a recent car accident, the children's mother lay in bed awake until about 4 a.m. At that time, she got up, checked on the children who were still sleeping in the recreation room, turned off the recreation room lights, took some Tylenol, and went back to bed. Shortly after 5 a.m., she heard steps on the stairs and considered asking her husband, who was snoring beside her, to get up and check on the children. In the meantime, the house had become quiet again and she finally drifted off to sleep.

At 7:30 a.m., Joseph Lavigne -- nicknamed Joe -- went into the bathroom and found his five-year-old daughter there. He believed she had a case of diarrhea and called out to her mother for help. The mother ran a bath for the little girl while Joe went to clean up the recreation room. As the mother helped the little girl into the bath, she noticed that the dark substance they had thought was diarrhea was actually dried blood. While the mother was in the bathroom with the little girl, Joe noticed a blood spot on the recreation room floor. He then saw that the front screen door had been propped open by a brick and the front door was open.

Now concerned, both parents asked the little girl what had happened. The child said: "I fell down and got hurt." When the child noted their disbelief, she said, "A man took me outside and hurt my bottom. It was a daddy. A daddy carried me out to the church parking lot. He told me to take my clothes off or he would spank me. He stuck his pee-pee in mine."

The man had run away (in a direction away from the Lavigne home) with the child's clothes, so she returned home and went upstairs to get a nightgown. The little girl then returned to the recreation room where she had been sleeping peacefully when her mother had checked on her just a short time earlier. Later, she went into the bathroom because she said she thought she needed to have a bowel movement.

The child's parents called 911 to report the incident. The 911 operator asked them to try to find out more information from the child before the officers arrived. The parents questioned the little girl and asked her to describe as well as she could what the assailant looked like. She said he was wearing green blue jeans and had black hair. When she was questioned about the length of the man's hair, she said that it "was like Daddy's before he cut it."

An ambulance arrived before the police officers. The ambulance driver immediately walked over to the church parking lot to see where the rape had occurred. When the police arrived, the little girl and her mother were taken to the hospital by ambulance. During the ride to the hospital, the girl repeated that "a" daddy had taken her outside.

Shortly after the ambulance arrived at the hospital, a doctor questioned the little girl once again. In the presence of two doctors, the child reported that a man "that really looked like my daddy" had carried her outside to the church parking lot, put her on the grass, took her pants off and "put his pee-pee in mine." The child said that the man had black hair and was wearing green blue jeans and a shirt that "looked like my daddy's." She further described the shirt the man was wearing as gray with little black dots on it. She described him as having "black peachy" skin and having "a little hair on his face," which she illustrated by pointing with her hand to her chin. When the doctor asked the child if she had seen the man before, she said no.

During the hospital interview, the mother recounted the events from her perspective. When the mother mentioned that she had heard steps on the stairs, the child said, "That was me."

The surgery that was performed on the girl to re-create a vagina and rectum lasted five hours -- she had been badly damaged by the rape. Rape-kit evidence was gathered and included 110 rape-kit evidence swabs. The little girl's mother was told that the child's insides had "lit up like a light bulb" when preliminary test lights showed the presence of semen.

Joseph Lavigne remained at home where the police questioned him and searched the family home. Later that Sunday, he was charged with First-Degree Sexual Assault, Sexual Assault Resulting in Serious Bodily Harm, and Incest.

Although the parents asked them to do so, the police did not take fingerprints from either the screen door or the front door of the family's home. The police also refused to cordon off the church parking lot and allowed church members to use the lot. The police searched the church parking lot after the church service. They found nothing. During the days following the incident, police and volunteers searched the surrounding area for the child's clothes. Again, they found nothing. According to a witness, a red truck had been parked in the church parking lot that Saturday night and was still there at 5:30 a.m. on Sunday. No one knows who owned the truck. There was no attempt to find any other suspects or even to check on the activities of known sex-offenders living in the area.

In an interview with the West Virginia State Police, the child told them that the assailant looked like daddy, but she didn't know him. The child helped a police artist draw a composite picture of the assailant. The picture looked nothing like Joseph Lavigne. The little girl said the rape took place on the grass, and she drew a map that showed pine trees between the church parking lot and a house that is owned by the church.

In a subsequent taped interview, she told an officer that the assailant "looked like" Daddy. When she was asked a second time who the assailant was, she cried in frustration, "I don't know his name!" When asked a third time, "Was it Daddy?" she cried out, "I don't know!"

Joseph Lavigne's trial was held immediately after elections. This enabled the newly re-elected judge and prosecutor to use the publicity surrounding the case to assist in their re-election without the risk of losing the case beforehand. The media's coverage of the case was intense, and it was impossible to find jurors who had not read about it. Joseph Lavigne's lawyer felt the prejudice of the judge and made pretrial statements to Joseph like "I have to work in this county" and "I don't want to upset the judge, or he'll just rule against us in later motions." She did not get independent DNA testing or independent psychological testing for Joseph or the little girl.

Witnesses were called in to testify at the trial to the events of that early Sunday morning. The 911 operator testified (this was hearsay.) that the parents had reported to her that the child had said that Daddy had done it.

A police officer testified that two of the swabs from the rape-kit had been tested for DNA and that no DNA evidence had been found. This same officer has since admitted in court that he had falsified DNA tests in other cases and claimed to have tested material that he had not tested. The police also managed to lose several very important items from the rape-kit. These lost items included two wooden objects that had been found inside the little girl's body during surgery. Doctors at the hospital believe that these wooden objects could very well have had semen on them.

Also presented as evidence were a pair of green army pants that had been found at the Lavigne house. The pants were marked with circles around oil stains. They were size 34 and no longer fit Joseph, who was a size 38. There was no evidence of semen or blood on the pants. The clothes Joseph was wearing that day were submitted as evidence, but there was nothing on them that related to the crime.

Pictures of the child's injuries were submitted as evidence. These proved that the crime was indeed horrible, but there was nothing about the pictures that pointed to Joseph. The tapes of her three interviews were also submitted as evidence.

During a hearing in the judge's chambers with the lawyers and Joseph present, the child was interviewed by the judge. She was happy to see her father, showed him her missing tooth, and tried to give him a picture she had drawn. Never wavering from her original story, she told the judge the assailant "looked like" Daddy, that she did not know the assailant's identity, and that Daddy had been in the house.

Later that day -- after the court spectators had been removed -- the little girl was taken into the courtroom in the presence of the jury and reporters. Although she was frightened, she again never wavered in her telling of her story. She told the jury that the assailant "looked like" Daddy (pointing at him), that she didn't know his identity, and that Daddy had been in the house.

The state argued that the little girl would have run to her parents for help if she had not believed her daddy was the one who had hurt her. They provided no evidence that this would have been normal behavior for this child. This particular child had always been known to be very independent. They did not ask the little girl why she didn't ask for help.

The state also argued that the reason Joseph Lavigne wanted additional DNA testing was because he had managed to wash every trace of DNA away and he knew that any DNA test would be negative. The state also said that Joe's skill in the board game Strategy would allow him to commit and cover up a major crime. However, Joe exhibited no special "Strategy skill" when he was speaking to the 911 operator.

The judge's instructions to the jury were: "You folks are the triers of the facts. If you disagree with the judge, of course, I've never made a mistake, but I could. Thus if you believe the testimony of the child beyond a reasonable doubt, you may return a verdict of guilty as appropriate under the indictment."

On November 20, 1996, Joseph Lavigne was sentenced to a 2- to 10-year sentence and a 5- to 15-year sentence to be served consecutively, as well as a 15-to 35-year sentence to be served concurrently.

During post-trial counseling sessions, the child has maintained that Daddy was not the man who had raped her.

On December 12, 1996, the West Virginia Department of Health and Human Resources removed the Lavigne children from their mother's care and placed them in foster care. The same judge who had presided over her husband's trial insisted on presiding over these hearings. Numerous witnesses testified that Joe's wife had a loving, nurturing and healthy relationship with all three of the Lavigne children -- both before and after the rape of the little girl. On August 21, 1997, the judge terminated the wife's parental rights. His stated reason was that, by supporting the innocence of the father, the wife belittled and destroyed the credibility of the daughter.

Neither of the Lavignes are allowed visitation rights, and another family has permanently adopted the Lavigne children. The oldest child is currently in a juvenile detention center and starving himself to death. He insists he will only eat his mother's cooking.

The time is now to help clear Joseph Lavigne and bring his family back together. A year ago, Joseph Lavigne requested an attorney. The head public defender of Kanawha County, West Virginia, expressed an interest in the case. Judge Clarence Watt, who presided over Joseph Lavigne's trial, continues to hold onto this case and his signature is necessary for Joseph to be allowed an attorney. To appeal to Judge Watt to allow Joseph to be represented by an attorney, please write:

Watt, Clarence L., Judge,
29th Judicial Circuit
Mason County Courthouse
P.O. Box 402
Pt. Pleasant, WV 25550
304/675-3480

Joseph Lavigne Jr. DOC #23080
Mount Olive Correctional Complex
One Mountainside Way
Mount Olive, WV 25185

 

Justice Denied

 

 

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