Justices question decision to overturn Putnam rape case By Kate White October 23, 2012 BUCKHANNON, W.Va. -- State Supreme Court justices expressed concern Tuesday that a Putnam County judge substituted his judgment for a jury's verdict when he overturned a 15-year-old rape case and freed a man from prison. Putnam County Prosecuting Attorney Mark Sorsaia said that is precisely why Joseph Lavigne Jr.'s conviction should stand. In arguments before the Supreme Court on the West Virginia Wesleyan College campus, Sorsaia said now-retired Circuit Judge O.C. Spaulding's decision went beyond a legal analysis and included the judge's opinion as to the merits of the case. "That's [the judge] starting to put his own spin on the facts as opposed to letting the jury make that determination," Justice Thomas McHugh said of Spaulding's analysis of the evidence against Lavigne. Lavigne was found guilty of the brutal rape of his daughter, then 5 years old, in 1996. He spent 15 years in prison and was released in May of 2011 after Spaulding overturned his conviction and gave him a new trial. In granting Lavigne's habeas corpus petition, Spaulding said the father of three had been denied a fair trial because the girl 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. Sorsaia appealed Spaulding's decision to the Supreme Court. "That's what this case is all about, the judge should not have replaced the jury's verdict with his own conclusions," Sorsaia said Tuesday. 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. "Why do you think Judge Spaulding, one of our finest judges, let him go, let him out of jail?" Chief Justice Menis Ketchum asked Sorsaia. "After practicing law for 27 years I do not understand his opinion," Sorsaia replied. Sorsaia argued that Lavigne's daughter was pressured to recant earlier statements identifying her father as her assailant. The child's behavior at trial, coupled with earlier out-of-court statements, could have convinced the jury Lavigne was guilty, he said. Justices asked a number of questions about Spaulding's ruling that a jury instruction improperly allowed them to convict Lavigne without the child's in-court identification. The jury instruction during the 1996 trial told the jury that the child's uncorroborated testimony, if believed, was sufficient to convict. Justice Brent Benjamin asked Lavigne's attorney, Greg Ayers, why he believed Spaulding's ruling that Lavigne shouldn't have been limited to four character witnesses was a correct one. "Where do we draw the line -- four, six, eight?" Benjamin asked. "And where is the constitutional issue?" Ayers told Benjamin that the defendant has a Sixth Amendment right to present a defense and his character was the only defense available, because of the circumstances of the case. "There's an old saying that there is strength in numbers," Ayers said. Ketchum replied, "There's another old saying, one good witness is better than 100 bad ones," drawing laughter from the gallery. To be entitled to habeas corpus relief a defendant must show a violation of his constitutional rights as opposed to simply a legal error at trial. McHugh asked Ayers how his arguments rose to a constitutional level. "The jury instruction lacked a material element of the crime, namely identification of the defendant as the person who committed the crime," Ayers said. The hearing in Lavigne's case was one of four heard by the court Tuesday. Since the session was attended by high school and college students, justices introduced each case so attendees could be familiar with the facts. Lavigne attended Tuesday's argument with several family members, not including the daughter at the center of the rape case. "It's very nerve-wracking going before the court again," Lavigne said after the arguments. "I think it went fairly well." Reach Kate White at firstname.lastname@example.org or 304-348-1723.