Va. appeals court to consider ex-SEAL trainee confession

By Larry O’Dell, Associated Press – 11/18/2008

The Virginia Court of Appeals has decided to hear oral arguments in a former Navy SEAL trainee’s bid to be exonerated after spending 13 years in prison for a murder he claims he didn’t commit.

Dustin Turner, of Bloomington, Ind., is seeking a “writ of actual innocence” based on another former trainee’s sworn testimony that he alone killed vacationing Emory University student Jennifer Evans in Virginia Beach in 1995. A circuit court judge in June found Billy Joe Brown’s confession credible, putting the matter before the appeals court.

In a recent order, the appeals court directed Turner’s lawyer and the attorney general’s office to file briefs. After that’s done, the court will schedule oral arguments — probably early next year.

Turner’s mother, Linda Summit, said in a telephone interview that she was disappointed that the appeals court didn’t simply accept the findings of Circuit Judge Frederick Lowe and order her son released from Powhatan Correctional Center, where he is serving an 82-year prison term.

“Who knows what their thinking is?” Summit said. “I think it’s just because this case is so different and it sets a precedent for other cases.”

Indeed, only one other inmate has successfully used a 2004 law allowing wrongly convicted inmates to win freedom based on newly discovered non-DNA evidence. And that case contrasted sharply with Turner’s because the attorney general’s office supported the innocence writ after tests showed a “gas gun” the inmate was convicted of illegally possessing did not meet Virginia’s legal definition of a firearm.

But L. Steven Emmert, chairman of the Virginia State Bar’s Appellate Practice Committee, interpreted the appeals court’s order as a positive development for Turner.

“It is not a slam dunk at this point, but it is definitely a good sign for the petitioner,” he said. “If they had decided there’s no merit in this, they would have said so immediately.”

Turner’s attorney, David Hargett, did not return phone calls and a spokesman for Attorney General Bob McDonnell declined comment.

The appeals court’s Nov. 6 order said “submission of briefs and oral argument will aid the decisional process” but did not elaborate. It set a briefing schedule stretching into January.

Turner met Evans, a 21-year-old Tucker, Ga., resident, at a Virginia Beach nightclub in June 1995. He claims they were sitting in the front seat of his car talking when a drunken and belligerent Brown got into the back seat and reached around to strangle Evans.

Prosecutors argued at trial that Turner and Brown wanted to have sex with Evans and killed her when she resisted.

Brown, serving a 72-year prison term, signed a sworn statement in 2003 saying he alone killed Evans. At first the confession did Turner no good because state law required any newly discovered non-DNA evidence to be submitted within 21 days of sentencing. The 2004 law eliminated that deadline, allowing Turner to pursue his claim in court.