The Virginian-Pilot
                             THE VIRGINIAN-PILOT 
              Copyright (c) 1995, Landmark Communications, Inc.

DATE: Thursday, February 2, 1995             TAG: 9502020366
SECTION: LOCAL                    PAGE: B4   EDITION: FINAL 
DATELINE: RICHMOND                           LENGTH: Medium:   64 lines


Lem D. Tuggle Jr., the last living member of the six-man gang that in 1984 staged the largest death-row escape in U.S. history, was due back in court today to fight for a new trial.

Tim Kaine, Tuggle's lawyer since 1989, said he would ask a three-judge panel of the 4th U.S. Circuit Court of Appeals to uphold a June 1994 lower court ruling that Tuggle's 1984 trial was unconstitutional. Tuggle was sentenced to die for the 1983 rape and murder of a 52-year-old Smyth County woman.

``His trial was a really bizarre aberration,'' Kaine said Wednesday. ``Protections allowed in the most minor civil cases were not allowed to Tuggle, simply because he was unpopular. He deserves a new trial.''

A spokesman for Attorney General Jim Gilmore, however, said Tuggle's case is a perfect example of why Gilmore backs proposals aimed at reducing lengthy death-row appeals.

``I can't comment on this case, but I can say these things just take way too long,'' spokesman Mark Miner said Wednesday.

In a release outlining the proposed Capital Habeas Reform Act, Gilmore said his office is looking to end ``the outrageous delay our laws presently allow in death-penalty cases . . . years of protracted and often frivolous post-trial litigation.''

Miner cited the case of Charles Stamper, who was on death row for 14 years after he was convicted of shooting three restaurant employees in the head in 1978. He was executed on March 19, 1993.

Tuggle, who with five other death-row inmates broke out of Mecklenburg Correctional Center in 1984 by posing as security guards, is 42 years old. He has been in and out of Virginia's courts for 22 years.

In 1972, he was sentenced to 20 years in prison for the murder of 17-year-old Shirley Mullins. Four months after his parole in 1983, Tuggle raped and murdered Jessie Geneva Havens, 52. He was convicted of capital murder and sentenced to death.

In 1992, Tuggle's lawyers filed a habeas petition in federal court in Roanoke, arguing their client's constitutional rights were violated during his trial.

U.S. District Judge James Turk upheld the petition last June, ordering that Tuggle be released or granted a new trial within six months. He is the first inmate to have his capital murder conviction overturned by a federal judge since the death penalty was reinstated in Virginia in 1977.

According to Kaine, the trial violated Tuggle's constitutional rights on seven counts. Most important of those, he said, was the insufficient evidence used to convict Tuggle of rape.

``Without that, it's not capital murder anymore,'' Kaine said.

The state planned to take issue with those and other claims Thursday, Miner said.

Kaine, meanwhile, said Tuggle remains optimistic about his chances. ILLUSTRATION: Associated Press/1984 photo

Lem Tuggle's lawyer will argue today that his 1984 murder trial was