Dec 8, 2012 2 min read

CHARLESTON, W.Va. (AP) – An attorney for a West Virginia man who has been ordered back to prison for the rape of a young girl is seeking his release.

Attorney Greg Ayers is requesting a rehearing for Joseph Lavigne Jr. before the West Virginia Supreme Court. He made several claims to support that request in briefs filed with the court, the Charleston Gazette reported Saturday.

Lavigne was freed last year after serving 15 years in prison for the sexual assault of a 5-year-old relative. But Supreme Court justices last month ordered Lavigne back to prison to finish his sentence.

The Supreme Court unanimously reversed a decision by a now-retired Putnam County circuit judge, O.C. Spaulding, who freed Lavigne last year after he said there had been insufficient evidence to convict at his 1996 trial.

The justices ordered Lavigne to serve the remainder of his sentence, refusing to return the case to a lower court. They ruled on the prosecution’s appeal of the sexual assault conviction.

Lavigne was sentenced to up to 50 years in prison.

In his filing with the court, Ayers said justices did not properly analyze a jury instruction. The lower court, in releasing Lavigne, ruled the instruction given during the 1996 trial was unconstitutional.

According to the trial record, the child told several witnesses she believed her attacker “looked like” Lavigne.

In his petition, however, Ayers contends the child’s description does not resemble Lavigne.

The petition asks the court to reconsider its rulings on Lavigne, including ineffective assistance of counsel and the absence of a determination of whether the child victim was a competent witness.

Lavigne filed a petition in 2001 seeking DNA testing of evidence and to have his convictions set aside. The Supreme Court in 1997 refused to hear Lavigne’s appeal.