Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, June 10, 1994 TAG: 9406170088
SECTION: VIRGINIA PAGE: B1 EDITION: METRO
SOURCE: |By MICHAEL STOWE| |STAFF WRITER|
DATELINE: LENGTH: Long
And the commonwealth's attorney who prosecuted Tuggle for capital murder in 1984 said it is "absurd" that the justice system allows death row inmates so many appeals.
"I think this is a good argument that there ought to be a cutback on the number of appeals," former Smyth County prosecutor Danny Lowe said Thursday. "Now, ten years after the fact someone is coming in to second-guess the whole thing. ... It has a lot to do with whether the federal courts" should even be involved in the process.
Judge James Turk overturned Tuggle's rape and murder conviction Wednesday and ordered the state to release him or grant him a new trial within six months.
Tuggle was sentenced to death in 1984 for the rape and murder of Jessie Havens, a 52-year-old Marion woman. He also is the last survivor among six death row inmates who staged the largest jailbreak in U.S. history when they posed as security guards and walked out of Mecklenburg Correctional Facility in 1984. All were recaptured and, except for Tuggle, have been executed.
Turk ruled the conviction was unreliable because Tuggle's rights were violated several times during his original trial. He also said the prosecution did not produce enough evidence that Tuggle raped Havens, a charge that must be proved to justify the death penalty.
Turk said the court failed to appoint him an expert psychologist and pathologist to testify in his defense.
Mark Miner, a spokesman in the attorney general's office, said the state likely will appeal Turk's decision to the 4th U.S. Circuit Court of Appeals in Richmond.
Death row inmates are allowed to appeal their cases to the federal court system after they have exhausted their appeals in the state system.
Barry Weinstein, director of The Virginia Post-Conviction Assistance Project in Richmond, said Tuggle is the first death row inmate in Virginia to get a conviction overturned in the federal court system.
Six other death row inmates have been granted new sentencing hearings by district judges, but none has been granted a new trial, he said.
"Lem's case is unique in that respect," Weinstein said. "But I'm not surprised; there were substantial trial errors." The project he directs provides assistance to attorneys who represent death row inmates.
Three of the six death row inmates granted new sentencing hearings by a U.S. district judge had that ruling reversed by the 4th Circuit Court of Appeals - meaning the death penalty stood, Weinstein said.
Two others were granted new sentencing hearings. Dennis Stockton, convicted in Patrick County in 1983 of cutting a man's hands off and shooting him in the head, was resentenced to the death penalty. James T. Clark, who shot a Fairfax County man in 1986, had his death sentence converted to life in prison at his second sentencing hearing.
Another Virginia death row inmate, Willie Turner, was granted a new sentencing hearing by the U.S. Supreme Court, but he later was resentenced to the electric chair.
Every death penalty case in the state is automatically reviewed by the Virginia Supreme Court, and since 1977 that court has heard about 90 cases, Weinstein said.
Only seven times has it reversed a circuit court decision. Five of those inmates were granted new trials and two were given new sentencing hearings.
Lowe, Smyth County's top prosecutor from 1980-87, said the state should consider limiting inmates' appeals strictly to the state system because the current, arduous process is bogging down the system.
He said capital murder defendants should be given adequate time to prepare a defense - even up to two years - but "once he prepares his defense and is sentenced then it ought to be carried out."
Tim Kaine, Tuggle's defense attorney in Richmond, said his client was pleased to hear that his conviction had been overturned but knows that "this isn't final."
If the 4th circuit affirms Turk's decision and grants Tuggle a new trial, Kaine said he hopes it will be on a first-degree murder charge, which is not punishable by the death penalty.
"I'm not sure they can retry him on the rape charge after what Turk wrote in his opinion," Kaine said.
If he is resentenced to life in prison, it is unlikely Tuggle will be granted parole again.
Havens was murdered less than four months after Tuggle was paroled for the 1972 killing of Shirley Mullins, 17. Both of the victims were killed after meeting Tuggle at American Legion dances and leaving with him.
At one court hearing during his 1984 trial, a psychiatrist testified there was a "high probability" Tuggle would kill again if he ever went free.
"It's unbelievable," he said. "I think that's where the problem is."
Tuggle's rights were violated because
"He was very happy, but he knows, too, that this isn't final," Kaine said.
Ben Hawkins, a spokesman with the state Department of Corrections, said it has not been decided if Tuggle will be taken off death row during the appeal. There are 53 inmates on Virginia's death row.
by CNB