WINFIELD — A judge will allow new DNA testing that could exonerate a Hurricane man who’s spent more than 15 years in prison after being convicted of raping his 5-year-old daughter.
Putnam Circuit Judge Joseph Reeder denied a request Wednesday made by Joseph Lavigne Jr. for a new trial, but granted his request to allow testing of various evidence that has either never been DNA tested before or hasn’t been tested with current methods. Lavigne is serving a jail sentence of 22 to 60 years.
The evidence includes hairs collected during his daughter’s examination at a hospital following the February 1996 rape and at a subsequent evaluation at the hospital the following month. It also includes towels and washcloths gathered from Lavigne’s home and swabs taken as part of a rape kit.
Lavigne’s daughter, Katie Haught Kelly, has publicly said she doesn’t believe he raped her, and the request for DNA testing referenced an affidavit in which she states she’s “absolutely certain” he didn’t do it.
“Joe has never disputed that someone abducted his daughter while she was sleeping at home and brutally assaulted her,” Lavigne’s request to allow the testing states. “He adamantly denies, however, that he was the perpetrator.”
The motion also states, “if a male DNA profile is found, it can be entered into the nationwide (Combined DNA Index System) database to determine whether it matches any of the more than 10 million convicted felons’ profiles presently contained in the database as well as unsolved sexual assault cases and other crimes.”
This database wasn’t available until after a jury found Lavigne guilty in 1996. The request also says the DNA evidence can be compared to that of two previous suspects in the case.
The national nonprofit Innocence Project, which is dedicated to helping prisoners who could be proven innocent by DNA testing, is aiding Lavigne’s case. Valena Beety, director of the West Virginia Innocence Project, a legal clinic of West Virginia University’s College of Law, said that if the DNA testing is favorable to Lavigne, and points to a different perpetrator, there would be various methods of setting Lavigne free. She didn’t know how long the testing would take.
Reeder’s order followed Prosecuting Attorney Mark Sorsaia’s announcement at the hearing that he had reversed his decision to oppose the testing. He had written a letter to Lavigne’s attorneys opposing the testing, but said he later realized that the state statute Lavigne had cited allows it.
“I grudgingly conceded because they did have the law on their side, so I had to follow the law,” Sorsaia said. “But it’s frustrating because I think when someone has their day in court and they get a fair shake, it’s time to move on.”
Sorsaia successfully appealed a 2011 decision by now-retired Putnam Circuit Judge O.C. Spaulding to grant Lavigne a new trial because of errors and a lack of evidence Spaulding cited in Lavigne’s original trial. In late 2012, the state Supreme Court unanimously rejected Spaulding’s decision and sent Lavigne back to prison.
Lavigne’s first parole hearing is scheduled for September 2017, and his projected release date is 2022, according to the state Division of Corrections website.
Beety said she was delighted Sorsaia agreed to the DNA testing.
“It’s clear that we both have the same interest of finding who the true perpetrator was,” she said. “We of course have a different perspective on who that perpetrator was.”
Sorsaia said Lavigne’s lawyers had already lost their fight for a new trial after 13 years of litigation and previous DNA testing, and said this new testing will drag on his office’s resources and limit his ability to prosecute new cases.
But he said, if the DNA testing does prove Lavigne’s innocence, “I’d probably be the first one getting up and letting him out of jail.”
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