
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: FRIDAY, June 30, 1995                   TAG: 9506300066
SECTION: VIRGINIA                    PAGE: B-3   EDITION: METRO 
SOURCE: JAN VERTEFEUILLE STAFF WRITER
DATELINE:                                 LENGTH: Medium

APPEALS COURT SAYS

THE COURT RULED that Judge James Turk erred when he overturned Lem Tuggle's capital murder conviction and death sentence.

A federal appeals court has ruled that death row inmate Lem Tuggle Jr. does not deserve a new trial, overruling a decision by U.S. District Judge James Turk in Roanoke.

Turk ruled last year that Tuggle, who raped and killed Jessie Geneva Havens in 1983, should get a new trial. The decision made Tuggle the first death row inmate in Virginia to get a conviction overturned in the federal court system since Virginia brought back the death penalty.

Tuggle is the last survivor among six death row inmates who staged the largest jailbreak in U.S. history. They posed as security guards and walked out of Mecklenburg Correctional Facility in 1984. All were recaptured and, except for Tuggle, have been executed.

The 4th U.S. Circuit Court of Appeals reversed Turk's decision that Tuggle should get a new trial or be freed. The three-judge panel sent the case back to Turk to dismiss it.

Tuggle was sentenced to death in 1984 for the rape and murder of the 52-year-old Marion woman after offering to drive her home from an American Legion dance. Havens was murdered less than four months after Tuggle was paroled for the 1972 killing of Shirley Mullins, 17, whom he also met at a Legion dance.

During Tuggle's 1984 trial, a psychiatrist testified there was a "high probability" Tuggle would kill again if he ever went free.

Turk had ruled the conviction should be overturned on several grounds, finding that Tuggle's rights were violated several times during his original trial. He said the prosecution did not produce enough evidence that Tuggle raped Havens, a charge that must be proved to justify the death penalty.

Turk also said the court failed to appoint Tuggle an expert psychologist and pathologist to testify in his defense.

The appeals court ruled that Turk erred in looking at the evidence "as if it were the original trial or appellate court without regard to prior findings of fact and numerous decisions of this court."

Tuggle's appeals had been rejected four times by the Virginia and U.S. supreme courts before Turk overturned his conviction last June. He may appeal again to the U.S. Supreme Court.

by CNB