Joe Lavigne, Jr.

Joe Lavigne vividly remembers the February morning he found his five-year-old daughter naked and crying in their second floor bathroom. She looked pale, sick and there was a thick, dark substance covering her legs. She told him she'd had an accident while trying to use the bathroom, so he started to help her clean herself.

It didn’t immediately occur to him that something far worse was wrong, it didn’t occur to him that his daughter hadn’t suffered an accident, but something intentional. It didn’t occur to him that this would be one of the last times he'd see her until his trial for her rape almost a year later.

According to his trial testimony, Mr. Lavigne went for his wife, Jamie, to get help. It was just after 7 a.m. and Mrs. Lavigne was finally drifting back to sleep again after waking up an hour or so before to take some pain medication. She ran some water in the bathtub and started lecturing her daughter about how to properly use the toilet. But the dark substance on her legs turned the water a bright red and they realized something was wrong.

Mrs. Lavigne asked her daughter, "did someone do something to you?"

"Daddy took me outside to the church parking lot," she told her mother. Mrs. Lavigne looked at her husband, who'd been standing in the bathroom doorway. He looked as shocked as she did. It was impossible, she thought, because she knew her husband had been asleep in bed with her all night, according to her own testimony.

Mrs. Lavigne asked her daughter again what had happened and she said "Daddy took me outside and put his pee pee in me." She turned to her husband and said "I think someone hurt our daughter," glancing over the fact that her daughter was calling that someone "daddy." To Mrs. Lavigne it was an off-handed statement from a hurt and confused little girl that had been through a traumatic—devastating— experience. She didn't give the notion of her husband as suspect a second thought, even when he bolted from the room.

He went to the kitchen, where he found their back door hanging open. He called out, asking his daughter if she'd left it that way. Yes, she had, she told her parents. It was how she came back in the house after being left alone outside.

They both teetered for a moment, unable to decide what had really happened and how serious the situation was, knowing that if they involved the police they'd have to admit to themselves that their five-year-old had been raped. "You know there'll be an investigation," Mr. Lavigne told his wife, and with that, called 911. What he didn't say at the time was that he knew he'd also be a suspect.

"She says it was someone who looks like me," Mr. Lavigne first told the 911 dispatcher who answered his emergency call. "Actually," he said, "she says it was me."

And as Mr. Lavigne expected, he became a suspect. But he cooperated with the investigation, giving hair and DNA samples and allowing the police to search his home. He willingly went with police to their station to be interviewed. He volunteered for a polygraph—which police told him he failed.

But unlike his daughter’s, Mr. Lavigne’s story never changed. Throughout the investigation and the 10 years he’s been in prison, he’s maintained his innocence.

But it was those words –"she says it was me"— that police immediately focused on and never let go of, it was those words that brought them to ignore a registered sex offender in the Lavigne's neighborhood and a mysterious red truck sitting outside their home that night. It was those words that made them believe they didn't need to fingerprint the doors in the Lavigne's house or even properly seal the crime scene before churchgoers could trample through it later that morning.

It was those words, and those words alone, that the state of West Virginia would use to convict Joe Lavigne of his daughter's rape and send him to prison for decades.

But then, at trial, those words never materialized.

"Folks, there are no videotapes. There's no DNA, no semen, no confession. There's nothing that links Joe Lavigne to this brutal act. This case revolves around her words," the prosecutor told the jury in Mr. Lavigne’s case.

But the jury never heard her words. They never materialized. The girl was only on the stand for a short time and her answers didn’t implicate her father, but at times, exonerated him. For example, when Barbera Allen, Mr. Lavigne’s attorney, asked where her father was while she was being raped, she told the jury he was “inside.�

At other times, she told the jury she didn’t know who had attacked her and as early as a few hours after the rape, her story changed from “my daddy� to someone who “looked� like her daddy. In the hospital, according to the testimony of the doctor that examined her, she said her attacker “had long hair, like my daddy used to have� and according to Mr. Lavigne's attorney, when interviewed by police months later, she said four separate times that she didn’t know who had raped her.

Ms. Allen told the jury in her closing argument that “(y)es, we know what (she) said right at the beginning. He’s (Mr. Lavigne) the one who made that public. He’s the one who did that. From then on, ladies and gentlemen, she has never said it again.�

And despite that Mr. Lavigne's daughter never implicated her father at the trial,  other witnesses seemed more than willing to fill-in the holes in the girl’s testimony.

Witnesses in court are generally limited to testifying about events that they personally observed and aren't often allowed to speculate or add their own interpretations of the evidence. But one witness in Mr. Lavigne's trial, realizing that she was contradicting the only evidence the state had against Mr. Lavigne, manage to explain her testimony in a way that was damaging to Mr. Lavigne's case without drawing objections from his defense or the judge.

The witness, the doctor who examined the victim in the emergency room, told the jury that “I asked her what happened, and she said that a man, and her quote was, ‘that looks like my daddy,’� had raped her, not that her dad himself had done it.

But then the doctor, without drawing any objections, added “but the inflection in her voice was, ‘if it wasn’t, he sure looked like my daddy.’�

Even the court reporter supplemented the girl’s testimony on the official record with her own observations, sometimes in ways that appear damaging to Mr. Lavigne. Take this exchange during the trial:

“…remember you told the Judge and Ms. Allen and everybody that you were going to tell us what happened. And we need to know, really, who did this to you? Do you remember?� Bill Rardin, the prosecutor, asked.

“I don’t know,� the girl replied.

Mr. Rardin tried again. “You don’t know? Have you ever seen him before?�

Then, the court reporter wrote “(w)hereupon, the witness turned slightly in chair and looked at the Defendant.� None of the other officials in the courtroom, the judge or the attorneys, noticed that the girl had "turned slightly" or asked that the record be marked with the girl's movements.

Despite the inconsistencies in the victim's story and her failure to implicate her father on the stand, the jury still convicted Mr. Lavigne.

It’s not unusal, according to Carol Tavris, for juries to convict suspected child abusers on razor-thin evidence. A social psychologist in Los Angeles and advisor to the National Center for Reason and Justice (NCRJ), an innocence project specializing in those falsely accused of child abuse, she told Where Doubt Remains that juries are so afraid of the possibility of putting a pedophile back on the street, that they’ll forgo logic and the standards of proof required for criminal convictions.

“They would often rather put an innocent person in prison than take that risk,� she said.

And when it comes to police and prosecutors who refuse to abandon early theories of crimes that aren’t supported by evidence, she says that there are “those who blind themselves to the possibility of error … when you put the words ‘child’ and ‘sex abuse’ in the same sentence, a lot of people lose their critical faculties.� Ms. Tavris co-authored the book Mistakes Were Made (But Not By Me) in which she argues that self-justification blinds most people to the possibility of error, police and prosecutors no exception.

On the board of NCRJ and author of Victims of Memory: Sex Abuse Accusations and Shattered Lives, Mark Pendergrast told Where Doubt Remains that "people jump to conclusions and they leap to an assumption of guilt almost immediately, more than any other form of crime." Once accused himself by his daughters after they underwent therapy that helped them recover what they believed were repressed memories of childhood sexual abuse, Mr. Pendergrast says there's a "witch-hunt mentality" in the country that started with daycare panic cases in the 80s and continues today.

But it’s not a surprise or even unusual that the police focused on Joe Lavigne as a suspect, at least, at first. He readily admits that his daughter spontaneously and without leading accused him of rape. But in a letter to Where Doubt Remains, he wrote “I am not a child rapist. I did not rape my daughter. The man who did got away because I was the only one the police and the prosecutor would look at.�

Mr. Lavigne’s claim that the police and prosecutor ignored or, at least, didn’t thoroughly investigate other viable suspects carries some weight. Though a man convicted of raping another young girl lived just down the street from Joe Lavigne's home at the time of his daughter’s rape, no one from the Hurricane Police Department talked to him during the investigation.

“In working sex crimes you always try to identify if you have any sex offenders in the area,� a private detective and former State Police trooper working for Mr. Lavigne's defense, told the jury. He discovered the man and passed his name and address on to the Hurricane Police Department, which was investigating the rape. But Ron Smith, the lead investigator on the case, said at trial he never received the information.

Still, Mr. Smith testified that he did review the State Police’s sex offender registry –which would've had the man's name and address on it— but that he did so "well after the fact.� He told the jury that when he saw the list of sex offenders living in the Lavigne's County, nothing jumped out at him and he didn’t follow-up on any of the names.

The man, meanwhile, still living near Hurricane, told Where Doubt Remains that he didn't know anything about the Lavigne case—at first. When pressed, he later admitted to knowing about the family, but only from news accounts he'd heard nearly a decade ago.

He confirmed that police never spoke with him and then offered that he'd always lived "13 or 14 miles" from the Lavigne's house on Teays Valley Road, contradicting the private investigator's sworn testimony, public records and his former neighbors.

When asked how he knew where the Lavignes had lived when he only remembered them from news reports, he wouldn’t answer.

Mr. Rardin, in his closing argument, told the jury that the man “in no way matches the description (the victim) told you,� and earlier, “Don’t sit back there and say ‘I wonder if that guy did it.’�

He also denied that the police ignored any suspects. “You saw Ron Smith. You saw him with that little girl and if you believe for one second that if he knew somebody else did this or had a lead he wouldn’t try to find the person that hurt (her) … to insinuate that he would let a rapist loose on the street would be just not believable.�

Mr. Rardin didn't respond to requests for comment and Mr. Smith's new chief (he now works for the Winfield Police Department) declined to allow Mr. Smith to comment about his work on the Lavigne case.

Police also failed to fingerprint the front and back doors of the Lavigne home, despite multiple requests to do so from Mr. Lavigne and his wife. One of the doors, which the Lavignes said in court they never used, was found propped open by a brick the morning Katie Lavigne was raped. The other door was freshly painted the day before the rape.

Mr. Smith told the jury he didn’t think it was necessary to fingerprint the doors and that he didn’t feel any usable prints could be taken from one of the door handles, because it was porous, grooved and ridged. Ms. Allen, however, had the door handle removed and brought to court.

Showing it to him, she asked “Now that’s as smooth as can be, isn’t it?�

“If that’s the exact one,� Mr. Smith answered.

“I’m representing to you there will be a follow-up that this is it. This was taken right from the door. My question is, this place where you would put the thumb to pull open that door, that’s as smooth as can be. Correct?�

“Yes, that’s fairly smooth," he said.

Other witnesses reported seeing a red truck in the parking lot by the church early the morning of the rape. Mr. Smith looked into the truck, which he admitted had no reason to be in the parking lot at that time—but stopped short of finding out who it belonged to.

Mr. Smith told the jury “the truck was seen at three-thirty (3:30) a.m. and it was also seen at four-thirty (4:30), and then when the daughter went to bed at five-thirty (5:30) she thought the truck was still there.�

“So at five-thirty (5:30) a.m. on February 11th, 1996, this unidentified red truck was still sitting here in the parking lot?� Ms. Allen asked.

Under questioning from Ms. Allen, Mr. Smith said he ruled out any legitimate reason the truck would’ve been in the parking lot.

“And, in fact, you just don't know whose red truck that was, do you?� Ms. Allen asked.

“No. I don't,� Mr. Smith answered.

At trial, though, Mr. Smith pointed out the things he did that showed he was intent on discovering who raped Mr. Lavigne's daughter, like extensive searches for the victim's clothing (they've never been found) and a BOLO alert (be on the look out) to nearby police agencies. He also denied that he was ever asked to seal the crime scene.

(CLARIFICATION 12/19/2007 at 1:30 p.m. | after reading this article, Mr. Ayers contacted Where Doubt Remains to reiterate that while he firmly believes the victim mistook her attacker for her father, he, at the time, didn't feel that the sex offender known to have lived near the Lavignes looked much like Mr. Lavigne. His judgment was based on pictures and since his interview with Where Doubt Remains, he has seen other photos from different time periods and now feels that Mr. Lavigne and the man do have many physical similarities).

For his own part, Mr. Lavigne has spent a lot of time in prison developing what he says is a list of possible suspects in his daughter's rape. He's also taken note of crimes in the area that are similar to the attack his daughter suffered and he's not the only one.

Around the time that the state was prosecuting Mr. Lavigne, he says the FBI contacted the Hurricane Police Department about a case they were working that they felt was similar to his daughter's case. According to Mr. Lavigne, Hurricane police refused to cooperate with the FBI. Mr. Smith did tell the jury he was contacted by the FBI about a similar crime in Kentucky, but said that after talking to him the agent was convinced the two cases weren't connected.

The FBI, meanwhile, has resisted releasing documents detailing their contact with Hurricane police regarding the attack, saying the records would invade someone's privacy. They won't say whose. The Hurricane Chief of Police said he doesn't remember any requests from the FBI regarding the Lavigne case.

Mr. Lavigne, however said he thinks the FBI was looking at the abduction, rape and eventual murder of Morgan Jade Violi, a little girl in Kentucky, as a possible match for his case. The FBI, however, told Where Doubt Remains it can't find any records that show the agency ever investigated the Violi case. However, a cached version of the FBI's Web site from 1996 shows the FBI was clearly involved. The page lists details about the case, a $20,000 reward and pleas that anyone with information contact the agency’s field office in Bowling Green, Kentucky.

Though tests on evidence by the state police lab indicated in 1996 that doctors had recovered some semen in the victim's rape kit, the state trooper testing the items wasn't able to locate any sperm to use in DNA testing. Without DNA, there was no forensic evidence linking Mr. Lavigne to his daughter’s rape, but none that could exclude him as her attacker, either.

Mr. Lavigne, however, has called into question the credibility of the state trooper doing the tests, Howard Brent Myers. Not long after Mr. Lavigne’s case was over, a federal magistrate issued a scathing report accusing Mr. Myers of lying on the witness stand in an unrelated rape case in the late 80s and early 90s. The magistrate said Mr. Myers "falsely testified about nonexistent serology test results supposedly linking (the defendant) to the crime,� noting that the lab didn’t even have the equipment required to perform the test Myers claimed to have done.

Mr. Myers subsequently told the court that he mistakenly referred to the wrong tests, and hadn’t meant to mislead anyone. He said he was following a policy established under his by then-disgraced colleague, Fred Zain. The State Supreme Court invalidated all of Mr. Zain’s testimony in West Virginia in 1993, after an investigation revealed that he had for years manipulated test results to implicate defendants and then lied about it at trials.

According to news reports, after Myers’ false testimony was discovered, the Zain investigation was reopened to see if any others in the lab had lied about performing tests. It’s unclear where that investigation went and the State Police say they're having trouble locating Mr. Myers' reports from the Lavigne case. The State Police public affairs office didn't respond to requests for comment from Where Doubt Remains.

Still, even without the questions surrounding Mr. Myers credibility, one expert sees other reasons to have the evidence in Mr. Lavigne’s case retested. Dr. Jeffrey Wells, chair of WVU’s Biology Department and an expert in forensic biology, reviewed Mr. Myers’ testimony and he told Where Doubt Remains that even if the lab really couldn’t find DNA 10 years ago, new tests today might.

He said that technology has considerably improved, especially in the area of DNA testing, and that forensics experts now use techniques that can more readily target male biological material like sperm, even in minute amounts.

Still, Dr. Wells is cautious on the subject of DNA testing. Even if semen was present in the old samples, there's no guarantee that the semen contained sperm. He also noted that one of the tests initially used to detect semen in Mr. Lavigne's case sometimes gives incorrect results, meaning there really may not have been any semen in the first place.

The doctors who performed the victim's rape kit may have also further complicated things by unwittingly destroying and tainting evidence, according to a leading academic urologist in the state.

He reviewed the rape kit procedures used on the victim and told Where Doubt Remains that the doctors probably diluted the samples so much that finding DNA in later tests would've been difficult. Instead of using a lavage as the doctors did, which involves washing the victim with a saline solution and then collecting the solution for testing, the urologist said he would've attempted to collect dry samples from the girl's wounds with swabs.

Mr. Ayers is also cautious. He told Where Doubt Remains that there's no guarantee that there's any evidence still available for testing and he noted that doctors testified to collecting some samples in the rape kit that somehow never made it to the police lab for testing. Even Mr. Myers testified that he simply chose to not test some of the samples, because he didn't feel they'd reveal any useful information.

Still, Mr. Ayers he's not ruling out avenues for investigation, including seeking new DNA tests. He wouldn't say, however, if his office is considering claiming that Mr. Lavigne's trial attorney, Ms. Allen, now a deputy attorney general, was ineffective. "She's a good attorney. I think she did what she thought was best for Joe," he said. But he also pointed out that his office isn't at the point in its investigation where they've settled on a legal strategy or are ready to file any court documents, noting he's the sixth or seventh public defender that's been assigned to Mr. Lavigne's case since he was convicted.

But he's hopeful, along with his investigator, that Mr. Lavigne will someday be exonerated. "We believe in Joe's innocence," he said.