THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, June 30, 1995 TAG: 9506300498
SECTION: LOCAL PAGE: B9 EDITION: FINAL
SOURCE: ASSOCIATED PRESS
DATELINE: RICHMOND LENGTH: Medium: 63 lines
Lem D. Tuggle Jr., the last living member of a gang that staged the largest death-row escape in U.S. history, lost his fight Thursday for a new trial.
A three-judge panel of the 4th U.S. Circuit Court of Appeals overturned a federal judge's ruling that Tuggle should be freed or retried. The appeals court said U.S. District Judge James Turk erred in several findings.
Turk ruled in June that Tuggle deserved to be released or granted a new trial. Tuggle's lawyers had argued that their client deserved a retrial because of constitutional violations during his original trial in 1984 for the brutal slaying of a Smyth County woman he met at a dance.
In overturning the ruling, the circuit judges said Turk ``appears to have considered the case, including the facts and the law, as if it were the original trial or appellate court without regard to prior findings of fact.''
Tuggle has spent the last 10 years on death row for the slaying of Jessie Havens.
Tuggle was one of six prisoners who escaped from the Mecklenburg Correctional Center on May 31, 1984. The breakout terrified prison employees and residents of the rural farming area.
Tim Kaine, Tuggle's lawyer since 1989, had alleged that the trial court failed to appoint an independent psychiatrist and pathologist to assist in Tuggle's defense. They also claimed there wasn't enough evidence for a rape conviction - which was necessary for the capital murder conviction.
Among other points, Kaine also argued that the trial jury was exposed to inflammatory news reports about the crime.
Senior Assistant Attorney General Donald R. Curry told the appeals court that even if some errors did exist, the vileness of Tuggle's crime alone was sufficient to warrant the death penalty. Havens was shot in the chest, raped, sodomized, bitten on the breast and thrown down an embankment.
Kaine did not immediately return phone messages to his office Thursday afternoon.
Tuggle and the five other death-row inmates broke out of Mecklenburg Correctional Center by taking 14 prison employees hostage and driving through the open prison gates. They were all caught within three weeks.
The other five escapees have since been executed.
Tuggle has been in and out of Virginia courts for more than two decades. In 1972, he was sentenced to 20 years in prison for killing 17-year-old Shirley Mullins. Four months after his parole in 1983, Tuggle raped and murdered Havens, 52.
In 1992, after the Virginia Supreme Court upheld Tuggle's death sentence, his lawyers filed a petition in federal court in Roanoke, arguing their client's constitutional rights were violated during his trial.
Turk upheld that petition last June, ordering Tuggle be released or granted a new trial. He was the first inmate to have his capital murder conviction overturned by a federal judge since the death penalty was reinstated in Virginia in 1977.
KEYWORDS: DEATH ROW MURDER SEX CRIME RAPE
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