Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, February 3, 1995 TAG: 9502030068
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: MICHAEL STOWE STAFF WRITER
DATELINE: RICHMOND LENGTH: Medium
Donald Curry, a senior assistant attorney general, told a three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond that Turk was ``far off base'' in suggesting that Tuggle's constitutional rights were violated repeatedly during his 1984 trial.
``It's just simply not credible to suggest that this case had six constitutional errors,'' he said. ``It just doesn't happen, and it didn't happen here.''
Tuggle, who was convicted of raping and murdering Jessie G. Havens, has appealed his death sentence for more than a decade. He is best known around the state for a 1984 prison escape, when he and five other death row inmates broke out of Mecklenberg Correctional Center by posing as guards disposing of a fake bomb.
In June 1994, Turk ordered the state to release Tuggle or grant him a new trial. The state appealed that decision, and arguments were heard by the 4th Circuit on Thursday.
Tuggle, who remains on death row, did not attend the hearing.
Attorneys on both sides focused their arguments on Turk's ruling that Tuggle's rights were violated because the Smyth County court failed to appoint an independent psychiatrist to help in his defense.
That issue surfaced at one of Tuggle's appeals nearly a decade ago, but the arguments aren't the same. The state in recent years has done an about-face on the issue. Here's a brief history:
In 1985, the U.S. Supreme Court vacated Tuggle's sentence and remanded it to the Virginia Supreme Court.
The nation's highest court asked the state to restudy Tuggle's case in light of a Supreme Court decision saying poor defendants are entitled to an independent psychiatrist at the state's expense.
The Virginia attorney general's office conceded that Tuggle deserved a new sentencing hearing - the only time the state has admitted error in a capital murder case.
Nonetheless, the Virginia Supreme Court upheld the death sentence, which remained in place until Turk's decision last summer.
Tuggle's attorney, Tim Kaine, on Thursday urged the three-judge panel to uphold Turk's ruling, pointing out that the state previously said Tuggle should be resentenced.
``There has been admitted error in this case,'' said the court-appointed attorney from Richmond.
Curry, the assistant attorney general, said his office was wrong in 1985 to say that there had been an error in Tuggle's trial.
But even if there was an error, he told the judges, it did not hurt Tuggle's defense.
``He has never shown that he was harmed by this supposed error,'' he said.
Turk also overturned the conviction for several other reasons. He said there was insufficient evidence to convict Tuggle of raping Havens. Turk also ruled that the Smyth County court erred when it failed to let Tuggle's attorney question potential jurors individually before the trial, and that the instructions given to the jury were unconstitutionally vague.
Judges Robert Chapman, Emory Widener and Clyde Hamilton heard Thursday's appeal.
The judges gave little indication of how they will rule, although Hamilton grilled Kaine about Tuggle's request for an independent psychiatrist. At one point, he told Kaine that he disagreed with the lawyer's argument.
But the judge complimented Kaine when he finished his remarks. ``You are very convincing,'' he told the attorney.
by CNB