Joe Lavigne, Jr.

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.