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Va. high court rejects ex-SEAL trainee's bid for freedom

(by Frank Green, Richmond Times-Dispatch, September 17, 2011, Link)

A unanimous Virginia Supreme Court on Friday rejected former U.S. Navy SEAL trainee Dustin Turner's exoneration bid in the 1995 slaying of a college student in Virginia Beach.

Turner, 36, and his SEAL training buddy, Billy Joe Brown, 39, were convicted of the murder of Jennifer Evans, a 21-year-old Emory University student who was visiting friends at Sandbridge.

Each man implicated the other in the slaying, and each was convicted in 1996. But in 2003, Brown changed his story and in an affidavit said he alone killed Evans by strangling her from behind as she sat in the front passenger seat of Turner's car.

Turner filed a petition for a writ of actual innocence with the Virginia Court of Appeals on the basis of newly discovered, nonbiological evidence, and Brown's recantation was found credible by a circuit court judge.

But the Court of Appeals turned down the petition last year, ruling that a rational juror could infer that Turner still could be guilty of abduction by deception with the intent to defile and, therefore, guilty of felony murder.

In a 35-page opinion released Friday morning, the state Supreme Court agreed and affirmed the judgment of the Court of Appeals.

"We're very relieved. It's been a long time coming," said Delores Evans, mother of Jennifer Evans, when reached by telephone at her home in Georgia. "We feel like the court got it right. We feel like the jury got it right the first time.

"We feel like we shouldn't have had to go through this."

Virginia Attorney General Ken Cuccinelli said his office was gratified by the decision. "Our thoughts are with the family of Jennifer Evans, whose life was tragically ended before she could realize her bright promise," Cuccinelli said.

But Friday's ruling does not necessarily put an end to the long-running case. Turner has 10 days to give a notice he intends to ask for a rehearing and 30 days to file a petition for a rehearing.

Turner, an inmate at the Powhatan Correctional Center, could not be reached for comment.

His mother, Linda Summitt of Indiana, was in Richmond on Friday and said, "It's not the news we wanted to hear. ... I am very upset and disappointed about the ruling."

She said they will consider seeking clemency from the governor. "Dusty is innocent and deserves to be set free," she said.

Turner's longtime lawyer, David B. Hargett, did not immediately return calls.

Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law, began assisting Hargett last year. She said she and Hargett will discuss whether to seek a rehearing.

Under the law used by Turner to seek exoneration, he had to show that no rational juror could have found him guilty beyond a reasonable doubt in light of the newly discovered, nonbiological evidence. (DNA evidence of innocence is considered under another law.)

Since the law was enacted in 2004, no contested petition for a writ of actual innocence based on nonbiological evidence has been granted.

"This is a real tragedy for Dusty Turner," Tate said. "It's a highly technical opinion which reinforces a widely held belief that these writs of actual innocence need to be rethought by the legislature."

* * * * *

The case began the night of June 19, 1995, when Jennifer Evans went out with two friends to a club in Virginia Beach, where she met Turner and didn't want to leave with her companions. The friends agreed to come back for her but could not find her when they returned.

Police searching for Evans looked for a SEAL named "Dusty," the man Evans last had been seen with. Turner and Brown repeatedly lied to police, denying any knowledge of her death.

But Turner eventually confessed, telling police that he and Evans were sitting in the front seat of his car parked outside the nightclub when Brown got in the back.

Brown, he said, reached over the seat and choked Evans to death before Turner could stop him. They took her body to a wooded area in a Newport News park, where it remained hidden for nine days.

When detectives confronted Brown with Turner's account, Brown blamed Turner for the murder, giving police at least two versions of the slaying. They were convicted by juries in 1996. Turner was sentenced to 82 years, Brown to 72 years.

Brown's recantation years later largely matched Turner's version of events.

But Friday's Supreme Court ruling noted there were two versions of Brown's affidavit — in one Evans died instantly and in the other he choked her twice — and that his recantation "was rife with conflicting statements."

Friday's opinion, written by Justice Donald W. Lemons, points out that Turner was convicted of felony murder under a Virginia law that applies when the initial felony and the homicide were parts of one transaction and close in time, place and cause.

"Because Turner was found guilty of felony murder, the relevant question before us is not whether Brown acted alone in choking Evans ... as Brown now alleges, but rather whether Turner abducted Evans with the intent to defile her," Lemons wrote.

The newly discovered evidence — that Brown alone strangled Evans — was not "material" to the question of whether a rational juror could have found him guilty of abduction by deception with intent to defile, Lemons wrote.

"Simply stated, nothing in Brown's recantation or the circuit court finding has any bearing on the question," he concluded.

Steven D. Benjamin, an area lawyer and president-elect of the National Association of Criminal Defense Lawyers, said of the opinion, "I think it's exactly right. ... It is a good, clear analysis."

"The fact that Brown now takes sole responsibility for causing Evans' death does not establish Turner's innocence," Benjamin said.

But, he contends, the problem remains that the Virginia law concerning writs of actual innocence based on newly discovered, nonbiological evidence is "virtually useless."


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