By Bill Sizemore, The Virginian-Pilot 9/17/2011
Former Navy SEAL trainee Dustin Turner has lost a last-ditch bid for freedom in the Virginia court system.
On Friday, the state Supreme Court turned down Turner’s petition for a “writ of actual innocence” in the 1995 murder of Jennifer Evans, a Georgia college student who was vacationing at the Virginia Beach Oceanfront.
Turner, 36, of Bloomington, Ind., has been behind bars 16 years. He had petitioned for release on the basis of a post-conviction confession by his co-defendant and SEAL “swim buddy,” Billy Joe Brown, that he alone was responsible for the murder.
Had he been successful, Turner would have been the first person to get a murder conviction overturned under a 2004 Virginia law allowing consideration of new nonbiological evidence of innocence after sentencing.
His only remaining chance for release would be a pardon from the governor. He has been turned down once, by then-Gov. Mark Warner in 2005.
Turner and Brown were convicted in separate jury trials that drew huge media coverage. Turner was sentenced to 82 years and Brown 72 years – both essentially life terms, since Virginia has abolished parole.
Evans was choked to death in Turner’s car outside the Bayou, a now-defunct Beach nightspot. At the time, Turner and Brown each blamed the other for the murder, and prosecutors conceded that they couldn’t prove which man was the killer.
Turner has maintained his innocence from the beginning, saying he was guilty only of being an accessory after the fact – a misdemeanor punishable by no more than one year in jail – because he helped Brown dispose of the body and cover up the crime.
After several days of questioning, Turner led police to Evans’ decomposed body in a wooded Newport News park.
Brown confessed in 2002, saying he had become a Christian in prison and could no longer allow an innocent man to pay for a crime he had committed.
Virginia Beach Circuit Judge Frederick Lowe ruled in 2008 that Brown’s confession was credible, and a three-judge panel of the Virginia Court of Appeals ruled in 2009 that Turner should be freed. That decision was overturned last year by the full appeals court, and Turner made a final appeal to the Supreme Court.
In its unanimous decision, the court called Brown’s recantation “rife with conflicting statements,” including two versions of how quickly Evans was killed. In one version, he said she died almost instantly; in the other, he said she revived briefly and he choked her a second time.
Moreover, the court found, the relevant question was not whether Brown acted alone in killing Evans, but rather whether Turner abducted Evans with the intent to defile her.
The two men were convicted of abduction as well as murder.
“The fact that Brown now confesses that he acted alone in restraining and choking Evans does not absolve Turner of his guilt,” the court said.
While conceding that there was no evidence that Turner had any role in physically restraining Evans – on the contrary, all the witnesses agreed that she went willingly with him to his car – the court said the jury could have reasonably determined that he abducted her by deception.
As evidence, the court cited testimony by a fellow SEAL trainee that Turner told him earlier in the evening he and Brown planned a three-way sexual encounter with Evans. Turner denied making the remark, and there was no evidence that any sexual activity occurred in the car.
“The issue in Turner’s case is not restraint; rather, it is deception,” the court said.
Steven Emmert, a Virginia Beach attorney who specializes in appellate practice, said Brown’s confession was not enough to convince the court that Turner was innocent of abduction.
“Once the victim was killed, it didn’t matter who did the strangling or whether Turner had an opportunity to try to save her,” Emmert said in a web posting. “Once you get involved in a joint criminal act, you’re at risk of prosecution for whatever happens, even if the primary perpetrator is someone else.”
The victim’s mother, Delores Evans, said the court’s decision comes as a relief. She said she has always believed Turner was as guilty as Brown.
She and Evans’ father are “hopeful that this thing is finally over with,” she said. “We’re weary and ready for a respite from it.”
Turner’s mother, Linda Summitt, who has worked for years trying to get her son freed, said she was “very upset and disappointed” by the ruling.
“I don’t believe the judges read the facts,” she said by email. “All anyone has to do is read the facts and they know that Dusty is innocent and deserves to be set free.
“Dusty was a very young man who made a mistake, but does that mean that he should spend the rest of his life in prison for a crime that he didn’t commit?”
Bill Sizemore, (757) 446-2276, firstname.lastname@example.org