Joe Lavigne, Jr.

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.

The National Court Reporter’s Committee says that it’s a violation of its ethical standards for a court reporter to describe “nonverbal communications� and “gestures� on the official record, but in addition to the above exchange, the court reporter in Mr. Lavigne’s case did so throughout his daughter's testimony—nearly 100 times in all.

Mr. Lavigne said in a letter to Where Doubt Remains that other times, the court reporter chose to omit gestures that could've been interpreted as favorable to him, like when his daughter turned and smiled at him when she took the stand and when she tried to show him where she'd recently lost a tooth.

An assistant clerk at the court said the court reporter has since retired and was unavailable to talk about the transcript.