GUilty until proven innocent
The WVU College of Law is aiding in one man's quest for freedom after 20 years in prison.
A DEVIL'S ACT
SUNDAY, FEB. 11, 1996
"Daddy, what are we doing?"
Five-year-old Katie Lavigne’s world revolved around the silly, random things that kids latch onto. For her, it was spaghetti, cats (she dressed as a black one every Halloween) and the pink Power Ranger.
She had fallen asleep earlier, curled up next to her 7-year-old brother in front of the family rec room TV.
Now she was awake, outside in the biting winter air, carried in the arms of a monster heading across the street toward the Catholic Church of the Ascension.
"Daddy, what are we doing?" Katie was placed onto a grassy area and raped.
Following the assault, the monster grabbed Katie’s clothes and fled in the direction behind the church. Cold and naked, Katie walked back home and eventually went into the bathroom. Her father, Joe Lavigne Jr., heard her from his bedroom and got up to see her cleaning herself with a washcloth. He called for his wife to come help, and they thought she had diarrhea.
They ran a bath for her and once she got in, the water turned red. It was blood. When her mother asked Katie what happened, she replied, "Daddy took me outside and hurt me."
Lavigne then noticed the front door of the house was open. Fearing that she had been raped, Lavigne called 911 and relayed what his daughter had said. He told the dispatcher that his daughter may have been sexually assaulted, and that she thought "daddy" did it.
NOT MY DADDY
THURSDAY, JULY 20, 2017
"Daddy, what are we doing?"
Fresh off her shift at a Taco Bell, Katie Haught, now 26, sits in a downtown diner, The Skiff, and recalls muttering that question to the man carrying her to the church parking lot two decades earlier.
"I don't remember if he even replied," she said. "I didn't even look at his face. I just assumed it was my father."
On a table is a red binder labeled "Lavigne Family Tragedy." It’s stuffed with newspaper clippings and documents chronicling an ongoing tale of despair, frustration and what many, including Katie, perceive as justice undone. The contents of the binder provide information that her memory either lost or blocked out.
"I don’t remember the assault itself," she said. "I’ve clung to the memory of just looking at the sky. It wasn’t light out yet. It was very overcast and most of the snow had melted except for some in shady spots under the trees. It was still very cold. And the sky was a dull gray with a little bit of blue."
Katie had to undergo five hours of surgery to recreate her severely damaged muscles and tissues, staying in the hospital for two weeks.
The monster that did this, Katie believes, is still lurking. She is adamant that it was not the man who served more than 20 years in prison for the crime — her father.
After the rape, Lavigne was arrested and charged with first-degree sexual assault, child abuse resulting in serious injury and incest. Nine months later, in November 1996, a jury found him guilty on all counts and sentenced him to up to 60 years in prison.
No physical evidence was presented at the trial.
Defense attorneys believe the investigation was incomplete as police did not collect fingerprints from the scene. Officers did not cordon off the church parameters where the assault took place. The church even proceeded with Sunday morning services that day, meaning any lingering evidence could have been tainted.
Officially, the initial investigation had no alternative suspects or leads. One witness mentioned a red truck parked in the church lot into the morning hours.
Although Katie initially described the monster as "daddy" or someone who "looked like daddy" to police and first responders, she did not identify her father as the assailant in the courtroom. According to the Charleston Daily Mail, "When asked who had attacked her, the girl was either silent or said she could not remember. When asked what her assailant looked like, she was silent."
Just a year later, the state took custody of the three Lavigne children, and their mother, Jamie Loughner, who has maintained her husband’s innocence, left West Virginia. Lavigne’s sister, Lori Haught, picked up the broken pieces and raised the children.
Katie adapted. She studied photography at the Art Institute of Pittsburgh and now runs her own photography business, specializing in portraiture. She’s raising a 6-year-old daughter who is beginning to learn about the family tragedy.
"She knows my father’s been arrested," Katie said. "She knows he didn’t commit the crime. I’ve told her that bad people do bad things and that I was taken when I was her age. We’ve only had a conversation about what rape is recently. She asked me."
Haught’s blue eyes well up. She stares off in the distance and pauses to collect her thoughts.
"I don’t know if I ever believed it was my dad. The system is broken, corrupt and terrible. It was an election year and there’s no doubt people involved in the case benefited from the idea that they put a rapist behind bars. Unfortunately, that’s the stuff that happens. There’s certainly anger. I was in a traumatic state. And I was very young. When you’re young, all men are daddies and all women are mommies. Most kids think that way. I’ve thought to myself, 'maybe that’s what I meant.' I saw one account where I said 'a daddy' did it. A daddy. But not my daddy."
FRIDAY, AUG. 4, 2017
Valena Beety hunkers down in the basement of the West Virginia University College of Law and ponders how they’ve reached this point.
A law professor and director of the West Virginia Innocence Project, Beety
has worked on Lavigne’s case since 2012 alongside a handful of rotating third-year
With chic bright red hair, Beety is upbeat, spunky and greets everyone with a smile. The Lavigne family saga and the dreary caseloads she’s submerged in don’t dampen her personality. Right now, Lavigne’s case is top priority.
The West Virginia Innocence Project, housed within the Clinical Law Program at the College of Law, is part of the wider, national Innocence Network, connected with other innocence projects around the country and world. The original Innocence Project in New York was founded in 1992 with the goal of exonerating wrongly convicted inmates through DNA testing. Nationally, its efforts have helped free 343 people due to DNA evidence.
Beety’s team is so, so close to adding Lavigne to that list of exonerees. She first met Lavigne when he prepared to return to prison. After serving 15 years of his sentence, Lavigne was freed in 2011. Putnam County Circuit Judge O.C. "Hobby" Spaulding issued a 74-page opinion overturning the conviction by citing insufficient evidence and how the trial judge’s instructions to the jury presumed Lavigne was the assailant.
The West Virginia Supreme Court overturned Spaulding’s decision and reinstated Lavigne’s conviction in 2012.
"Do you know how much work and dedication it takes an attorney to get a conviction reversed?" Beety asked in disbelief when recollecting the case’s chronology. "The standard is much higher to get a conviction reversed than getting a conviction in the first place."
At the time, Lavigne was represented by Kanawha County public defender Greg Ayers, who’s now retired. Ayers asked Beety if the West Virginia Innocence Project would take the reins for Lavigne and help file a federal petition. Beety reviewed the case and took it without hesitation.
"I meet all of my clients in prison. That’s what I’m used to," Beety said. "Here I’m meeting Joe and his family as he’s getting ready to go back to prison. It was really upsetting. He reconnected with his children and family and was doing great service work. Now that was being ripped away again. It undermined my own confidence in what I could do. Even if you get someone exonerated, that can be snatched away."
Before coming to West Virginia, the University of Chicago grad served on the other side of the courtroom as a federal prosecutor in Washington, D.C. She later switched her focus to an area of law where she felt she could make the most impact, litigating wrongful conviction cases.
"Not enough people realize there are flaws in the criminal justice system," she said. "Part of our project aims to prevent wrongful convictions in the first place, to fight for policy changes and to educate public defenders, prosecutors, police and judges. We can stop wrongful convictions from happening."
There’s a sliver of hope for Lavigne. Beety refers to Floyd Bledsoe, a Kansas man who served 15 years of a life sentence for the shooting death of his sister-in-law. Bledsoe, too, had his conviction reversed before an appellate court reinstated it. He got his conviction reversed again due to DNA evidence and was released in 2015.
Despite the lack of physical evidence introduced in Lavigne’s trial, Beety said evidence exists that proves her client’s innocence. Newly tested DNA samples from Lavigne do not match up with the DNA profile taken from the rape kit, Beety said. This excludes Lavigne, but the Innocence Project is still building the case before it is officially introduced into the legal realm. Additional testing is also ongoing.
"Enough time has passed and the science has developed enough that if we can get one more shot at freeing Joe, let’s look at it," Beety said. "That’s the only advantage to him being in this long. It’s given science time to advance to show he didn’t commit this crime at all."
MONDAY, SEPT. 25, 2017
HUTTONSVILLE CORRECTIONAL CENTER HUTTONSVILLE, W.VA.
At a stout 5-foot-6, his upbeat demeanor, clean-shaven face and crew cut-like hairstyle ensure that no director will cast Danny Trejo to play Lavigne in a biopic. He’s 60 but could probably pass as 40-something.
In 20-plus years, he’s been written up only four times, for infractions like "having too much paper" and eating pie left behind in the library. Rather, you'd likely find Lavigne playing "Minecraft" or "Civilization Revolution" on Xbox 360 (a perk for good behavior), reading a W.E.B. Griffin book or concocting some creative way to microwave ramen noodles (he’s added cheese, beef sticks and whatever else is available in prison).
At Huttonsville, Lavigne has served as one of seven legal clerks, researching cases of fellow inmates and assisting in their filing of documents. "I got George White out through habeas and appeals," he once proudly proclaimed.
Today he’s being afforded one small step to freedom. He’s up for parole. The cascade of support that’s turned out should help. A dozen or so relatives, friends and attorneys past and present huddle outside the prison gate for two hours waiting for a cue to enter the hearing.
Katie is here to vouch for her father’s innocence. She’s fraught with anxiety and has carefully prepared a handwritten letter to read to the parole board. Atop each page are reminders to breathe, make eye contact and be confident.
Penned multiple times throughout the letter is the sentence, "My father DID NOT rape me."
Once inside the prison, Katie, battling tears, gracefully recites her letter to the three-member panel with Lavigne nearby.
"An evil man took my innocence that morning and broke my body. But it was the justice system that failed us, that took my daddy and broke my heart.
"I remember in the years that followed wishing on the first star that my daddy would come back home. I blamed myself for what I said or for what I didn’t say. Or for not having the courage to speak. I was traumatized and unwilling to relive it. I know now that I’m not to blame. But I wish I had been more clear, said outright that it wasn’t him."
One by one, Lavigne’s supporters, like Ayers, the retired public defender, attested to his character and innocence. Ayers painted Lavigne as an upstanding family man with an honorable military background. Lavigne spent seven years in the Army and was in the 82nd Airborne Division. After his discharge, he worked on helicopters as a civilian contractor while a member of the Air National Guard. He was also employed by Xerox as a copier technician.
The parole board listened to everyone’s statements before sending Lavigne, his supporters and a few prison guards out of the room so it could render a decision. Lavigne’s attorneys and family members arrived here without high hopes. They’ve seen the system wrong Lavigne before. They also understand that parole boards are more sympathetic to inmates who admit guilt and accept responsibility for their misdeeds. In this instance, Lavigne could not accept guilt because he did not commit the crime, his lawyers insisted.
Still, Lavigne tried lightening the mood during the brief break.
"Why doesn’t a werewolf shave?" he asked his family.
He answered his own question with, "Because it would be a hairy situation."
Typical dad joke.
After about five minutes, everyone is summoned back to the parole board. The panel reveals its decision: Lavigne is free on parole, pending the approval of a home plan that explains where he would live and what he would do for employment. He will get to leave Huttsonville on Nov. 15, in time for Thanksgiving. It was a victory, albeit a small one in the grand scope of things. Yes, Lavigne would be released from prison. But like a modern-day Scarlet Letter, "sex offender" and "child rapist" will hover over Lavigne’s public persona until he is exonerated in a court of law.
In this moment, however, there was no time to sulk. Lavigne would soon reunite out in the free world with the children he never saw grow up.
TUESDAY, DEC. 2017
CROSS LANES, W.VA.
Lavigne is still fresh to the outside world. He’s spending the morning with family in Cross Lanes before a meeting about potential employment. A few weeks earlier, he walked out of Huttonsville Correctional Center for perhaps the final time.
Lavigne displayed not just a beaming smile exiting the prison but gratitude by sporting a blue WVU Law West Virginia Innocence Project T-shirt. His two sisters, son Conner, Beety and three students working the case greeted him with fanfare as he passed through the gate.
"The day I was let out, I jumped up and down a few times, yes," Lavigne said. "And then I went and ate Chinese food. It’s a tradition at this point. A tradition of two."
He did the same when released in 2011.
"Having support on the outside helped me maintain on the inside," Lavigne said. "There’s no way I could’ve done this without the West Virginia Innocence Project. Every year, I got new student attorneys and got to work with them. They’ve worked and worked doggedly."
Because he’s out on parole doesn’t mean the law clinic’s work is over.
There’s still the DNA results to introduce, as well as the filing of
a coram nobis, a legal order in which a court could correct its original
judgment upon discovery of an error or new evidence.
Before that, he needs to be able to see all of his family. He’s not allowed to have contact with his daughter, Katie. A standard condition of parole for sexual offenders is that they cannot have contact with their victims, even if the victim consents.
Beety and the students are hoping to lift that restriction for Lavigne, who agrees that it’s a needed law in most cases. He also couldn’t visit his ailing mom at a hospice care group setting because of his felony record. She died in February.
"I’m used to following unreasonable rules," Lavigne said. "I have 20 years of experience with that."
Lavigne attributes the longevity of his sanity to martial arts experience and his father being a psychologist.
"You can’t get back one second of your life," he said. "It’s gone. You got to live for now. You cherish the past, live in the now and plan for the future. You can get angry, bitter, sad, depressed. Most of the time, it’s over stuff you can’t do anything about."
Lavigne and his son have a brief geek-to-geek chat that includes the new Star Wars movie, "The Last Jedi," and the video game "Skyrim." Lavigne said he spent much of Thanksgiving playing the action role-playing game that pits you against a dragon looking to destroy the world.
It’s symbolic as Lavigne has battled a seemingly mythical creature over the last 20 years.
This dragon comes in many forms — prosecutors, investigators, judges, juries, the legal system itself. It also takes the form of the monster that scarred his little girl and tore a family apart. A monster that is still lurking.
"I blame myself for not protecting her," Lavigne said. "She was taken out of the house and raped.
"I have never made an admission and would rather spend the rest of my life in prison before admitting to a crime I didn’t do. I will continue to challenge this forever, and we will find the guy."
For more , listen to our Sparked podcast episode "Come Home, Daddy," below, which dives further into the case.