Judge to restore Lavigne's jail time
CHARLESTON, W.Va. -- Joseph Lavigne Jr. will appear before Putnam Circuit Judge Phillip Stowers at 3 p.m. Tuesday so the year and a half he has been free can be tacked back on to his prison sentence.
His new parole date will be 2023, said Lavigne, who was found guilty of raping his 5-year-old daughter in 1996. His conviction was overturned last year, then reinstated by the state Supreme Court last week.
Lavigne's attorney, Greg Ayers, filed a stay of execution on the sentence with the state Supreme Court on Monday, which if granted would allow Lavigne to remain free on bond while he appeals his case further.
The Supreme Court ordered Lavigne to immediately return to jail last week to complete his sentence of 22 to 60 years.
A Harrison County jury found him guilty in 1996 of incest and sexual assault. The trial was moved from Putnam County because of pretrial publicity.
In May 2011, now retired Putnam Circuit Judge O.C. Spaulding overturned his conviction saying there wasn't enough evidence to convict him. Lavigne was freed on bond at that time.
On Wednesday, the Supreme Court disagreed and ruled Spaulding had abused his discretion when granting Lavigne a new trial.
Lavigne plans to appeal to the U.S. Supreme Court.
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.
Meanwhile, Ayers said he plans to pursue other issues besides those Spaulding addressed when he overturned Lavigne's conviction -- the competence of Lavigne's daughter, who took the stand despite a psychologist's recommendation, and testimony at trial that was later determined to be false.
Ayers had presented Spaulding about 30 claims that Lavigne's constitutional rights to a fair trial and effective counsel were violated during a 2010 hearing.
On Monday, Lavigne met with Valena Beety, director of the West Virginia University Innocence Project.
"He has a great attorney now, if we were to get involved, our role would be to just assist anyway we can," she said. "It's a very compelling case."
Beety pointed out that the evidence at trial had been undermined during the 2010 hearing. She said she was perplexed that the Supreme Court had undermined Spaulding, who was shown all of the evidence.
The WVU Innocence Project is a new legal clinic affiliated with a national organization of criminal defense lawyers who help prisoners fight wrongful convictions.
Reach Kate White at email@example.com or 304-348-1723.