Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, September 25, 1994 TAG: 9409260017
SECTION: VIRGINIA PAGE: A-1 EDITION: METRO
SOURCE: MICHAEL STOWE STAFF WRITER NOTE: below
DATELINE: LENGTH: Long
Lem Tuggle was sentenced to die in 1984 for raping and killing a Smyth County woman. Walter Correll Jr. was given the death penalty in 1986 for robbing and murdering a man in Franklin County.
For most of the past decade, lawyers for Tuggle and Correll have filed appeal upon appeal, hoping that some judge, somewhere, would overturn the convictions or the death penalties.
The appeals got them nowhere - until this summer.
In a span of less than three months, U.S. District Judge James C. Turk ruled that the rights of both men had been violated during their original trials. Tuggle and Correll became the first death row inmates to have capital murder convictions overturned in federal court since the Virginia death penalty was reinstated in 1977.
In addition, another federal judge this year has ordered new sentencing hearings for three other men who had been given the death penalty. In each of those cases, the actual convictions were not affected.
Advocates on both sides of the death penalty debate say the recent reversals may not be the last.
Tuggle and Correll remain in Mecklenburg Correctional Facility while the state appeals Turk's decisions to the U.S. 4th Circuit Court of Appeals in Richmond.
Turk's decisions left prosecutors and victims' families questioning how a federal judge could overturn death sentences that had been upheld by more than 15 judges through five appeal stages.
Turk said constitutional errors occurred in the trials of both men.
"I don't think in either one I had any real choice," Turk says. "My heart goes out to the families" of the victims, "but they just don't understand the procedure."
Men sentenced to die in other states have found refuge in the federal courts.
A recent study by the American Bar Association reported that 40 percent of appeal petitions filed in federal court have resulted in reversals of convictions or new trials. Such petitions ask courts to determine whether a prisoner has been legally convicted or imprisoned.
Virginia, though, has had one of the country's lowest reversal rates; for that reason, critics and advocates of the death penalty have been surprised by the five federal court rulings in Virginia this year.
Virginia grants fewer appeals and moves death row cases through the system faster than almost every state, said Richard Dieter, director of the death penalty information center in Washington.
Statistics appear to support Dieter's contention. Since capital punishment resumed in the late 1970s, Virginia has carried out 24 executions, third behind Texas and Florida. But the state ranks 17th in the nation in the number of people on death row.
Before this year, five death row inmates in Virginia had been granted new sentencing hearings by federal judges; none had been granted a new trial. Three of the five death row inmates granted new sentencing hearings by a U.S. district judge before this year had that ruling reversed by the 4th Circuit - meaning the death penalty stood.
"All the way around, we're at the bottom of the list," Richmond defense attorney Gerald Zerkin said. "But those days are maybe over."
Zerkin said the latest reversals don't represent a change in judicial attitude, but reflect a higher quality of representation by lawyers in capital crime cases.
"We just do them better," he said.
The Capital Representation Resource Center in Richmond helps find specialized legal representation for death row inmates; Zerkin said it's been a valuable resource in helping train lawyers.
Don Harrison, a spokesman for Virginia Attorney General Jim Gilmore, said the high number of recent reversals does not reflect a new mind-set on the part of the judges; instead, he attributes it to the fact that federal judges have simply reviewed an unusually high number of capital cases this year.
But even Harrison acknowledges that the wave of capital sentence reversals may not be over.
U.S. District Judge James R. Spencer in Richmond has ordered new sentencing hearings for three death row inmates from Hampton Roads. In his ruling overturning one of the death sentences, Spencer cited a U.S. Supreme Court decision in June that a jury must be told if a defendant would not be eligible for parole if sentenced to life in prison instead of death.
Shortly after that ruling, the U.S. Supreme Court sent two cases back to the Virginia Supreme Court for reconsideration and possible resentencing.
Harrison said the attorney general doesn't think the ruling should be applied retroactively; if it is, several more death row inmates might get new hearings.
Bill Geimer, director of the Virginia Capital Case Clearinghouse at Washington and Lee University, said he's certain that Dennis Eaton - a Mount Jackson man convicted of murdering four people, including a state trooper, in Rockbridge County in 1989 - would benefit from the high court's ruling and get a new sentencing hearing. His case is pending in the U.S. Supreme Court.
The lengthy appeals process in capital murder cases is so confusing that even some attorneys have a tough time with it.
There are 10 basic steps to the electric chair in Virginia. It takes inmates roughly a decade to file all of the appeals, which are divided into three basic levels - direct, state and federal.
Tuggle and Correll were in the final stage of their appeals when Turk ordered new trials for them.
Before Turk's ruling, each man's death sentence had been appealed twice to the Virginia Supreme Court and twice to the U.S. Supreme Court.
Turk granted federal writs of habeas corpus for Tuggle and Correll, but few people understand how the habeas appeal works.
Latin for "you have the body," a habeas petition is used by a court to determine whether a prisoner has been constitutionally sentenced and lawfully imprisoned.
Dieter, at the Death Penalty Information Center, said a habeas petition allows a judge to take a fresh look at the case. The judge is not considering guilt or innocence, but whether the prisoner's rights were violated. Common issues raised are the right to an attorney and the exclusion of evidence that could help the defendant.
In Correll's case, Turk said a confession was obtained unconstitutionally because Correll's request for an attorney was denied.
Turk overturned Tuggle's conviction because the court failed to appoint an expert psychologist or pathologist to testify in his defense. Turk also said the prosecution did not have enough evidence to prove that Tuggle raped the woman who was killed, a charge that had to be proved to justify the death penalty.
Death row inmates can file habeas petitions in both state and federal court.
Geimer, the director of the Virginia Capital Case Clearinghouse, says death row inmates have about as good a chance of winning the state lottery as they do of getting relief from state habeas petitions.
"I would sit down tomorrow and eliminate the state habeas process," he said. "You never get any relief there."
Hardly ever, anyway.
Since the death penalty was reinstated, only twice has a judge ruled in an inmate's favor on a state habeas petition, said Barry Weinstein, director of the Capital Representation Resource Center.
Defense attorneys attribute the low reversal rate for state petitions to the fact that they are filed with the judge who ruled during the original trial. It's rare for a presiding judge to second-guess his original decision after a verdict has been reached.
Death row inmates can file a federal habeas petition only after they have exhausted all state appeals options.
Federal habeas corpus has been called the "last refuge of the scoundrel and the last hope of the innocent."
The first Congress empowered federal courts to rule on habeas petitions.
Since then, the subject has been a source of debate between critics who say the process causes unneeded delays of state law and advocates who say the federal level is a prisoner's only real chance for relief.
Danny Lowe is a former Smyth County commonwealth's attorney and the man who prosecuted Tuggle. Lowe is outspoken in his criticism of the federal habeas process.
"Every time the federal court scope expands ... it is cutting away the authority of the state courts," he said.
Lowe, who now is in private practice, said he is bothered that death row inmates can have their sentences overturned on issues that have nothing to do with guilt or innocence.
These habeas appeals "may not sound esoteric to someone sitting on death row, but they do to the general public," he said.
In overturning Tuggle's conviction, Turk said there wasn't enough evidence of rape because no semen was found in the woman's vagina.
Lowe said that bruises around the woman's vagina were more than enough evidence that she had been violated sexually.
"What you have is a circumstantial case of rape and a definite case of sodomy," he said. "Does it really make any difference? ... It's kind of a technicality.
"There's some times when I think the real injustice is giving them a trial. I know I'm not supposed to say that, but that's how I feel."
The issue of whether the woman was raped could make a difference, though. When Tuggle was convicted in 1985, murder during the commission of sodomy was not a capital offense, so proving Tuggle committed a rape was required for a capital murder conviction. The General Assembly added murders involving sodomy to the state's list of capital crimes in 1991.
Roanoke defense attorney Tony Anderson defends the right of death row inmates to file federal habeas appeals.
He said state appeals courts often do not look as closely as they should to make sure death row inmates were given a fair trial.
"I think they have gotten so review-oriented that they are taking the position that they are going to leave any constitutional law up to the federal courts," he said.
What may seem like "an innocuous rule" to the general public is actually a constitutional guarantee, Anderson said.
"I'm not saying I think it's perfect, but I think Virginia has a pretty good system," he said.
Turk said he agrees with people who say the appeal process in capital cases takes too long.
In the meantime, Turk said he has several habeas appeals from death row inmates pending in his court.
Turk was a state senator from 1959 until President Nixon appointed him to the federal bench for the Western District of Virginia in 1972. Turk stepped down as the district's chief judge on his 70th birthday last year, but he still hears as many - if not more - cases than other federal judges in the western half of the state.
Turk, who routinely steps down from the bench to shake hands with criminals he has sentenced, has for years had a reputation as a forgiving judge.
There's speculation from some people that the federal judge opposes the death penalty and is therefore looking for ways to overturn convictions.
Shortly after hearing that Turk had overturned Tuggle's conviction, one court clerk said she wasn't surprised. "I think he would reverse them all if he could," she said.
Turk won't reveal his stance on the death penalty issue, but he says his rulings in the Tuggle and Correll cases were based solely on legal issues.
Three of his last four habeas rulings have favored the death row inmate. In addition to Tuggle and Correll, Turk ordered a new sentencing hearing for convicted murderer Dana Ray Edmonds in 1992. He affirmed the death sentence of Johnny Watkins Jr., a Danville man executed in March for the 1983 slayings of two convenience-store clerks.
But Lowe, one of the harshest critics of Turk's decision in the Tuggle case, said he doesn't think the judge is letting personal feelings influence his rulings.
"He may be looking at the cases more objectively than any of us," the former Smyth County prosecutor said.
by CNB