FREE DUSTY!


A New Chance at Freedom

In 1996, Dustin Turner was convicted of murder. Now, the man with him that night says he alone killed Jennifer Evans.

By Laura Lane,
Hoosier Times

All along, Dustin Turner has said he didn't kill Jennifer Evans.

It turns out the Bloomington High School South graduate, in the eighth year of an 82-year-prison sentence, may be telling the truth.

Because of a sudden change of heart by a fellow Navy Seal also convicted in Evans' killing, it's possible Turner won't spend the rest of his life in jail.

Billy Joe Brown, who was Turner's SEAL swim buddy, roommate and best friend, says in a sworn statement that he was lying when he implicated Turner because he was angry his friend told police about the murder and where they could find Evans' body. After his conviction, he also told his lawyer, and two cell mates, that Turner was innocent.

"The thought was if I'm going to die, he is going to die with me," Brown said in a statement to Virginia attorney Shea Cook in July 2002. "My attitude was since he told them, let him do the time also."

Brown, 28, admits he killed Evans. He received a 72-year sentence, 10 years less than Turner. But with no parole in Virginia, the sentences are basically for life.

TWO STORIES

After Brown was convicted and sentenced, he testified against Turner at his trial. He said Turner and Evans had left a Virginia Beach bar and gone to his car to wait for her friends to come and get her. Brown said he, too, went out to the car, where "I saw the girl laying there with blood coming out of her nose and foam around her mouth." He said Turner said he thought he had killed her.

He said Turner then suggested that the two take Evans' body to the beach, rape her and dump the body in the ocean. Instead, they hid her body in a wooded park about 30 miles away in Newport News, Va., where it was discovered nine days later.

Turner had another version of the events of that night, but jurors didn't buy it.

Speaking by phone from Augusta Correctional Facility in Craigsville, Va., this week, Turner recalled what he, and now Brown, recall from that June night in 1995.

Turner said a drunken Brown came out to his 1990 Geo and got into the back seat. He said his friend was vulgar and belligerent, and made a rude and sexually explicit comment to Evans.

"He touched her and when she smacked his hand, I demanded that he get out of the car, and at the same time I was saying that, at that instant, he just snapped and he whipped his arms around the front seat and snaps Jennifer's neck," Turner said. "I freaked out. I never expected anything like that. It was out of the blue."

Turner said he tried to help Evans, but it was too late.

"I started clawing at his arms to free them from her, I had to pull his arms away. Then I saw that her eyes and mouth were open but that her arms never came up to try and defend herself. I got his arms away from her and she was absolutely limp. Dead. He kept yelling at me to drive, just drive. This beautiful young lady was next to me dead and I was traumatized and scared and I didn't know what to do so I drove away."

In his statement last year, Brown said he was drunk at the time but remembers Turner's hand pulling on his arm while he choked Evans. He also took full responsibility for the killing. "Honest to God, it sounds crazy as can be, but I'm telling the truth. One minute everything was fine and the next minute I had killed her." He also admitted attempting to have sex with the corpse until Turner made him stop.

FIRM FAITH, BROKEN HEART

Turner's mother, Linda Summitt, a reading teacher at Ellettsville Primary School, never lost faith in her son. She had written to Brown in 2001 asking him to tell the truth, but received a letter back in which he asked her to never contact him again. She was heart broken. Brown was her last hope her son's legal appeals all had been turned down.

In March 2002, while on vacation in Florida, Summitt suffered a brain aneurysm. After surgery and weeks of hospitalization, she returned home. In June, she received a letter from Brown. He had become a Christian, he wrote. He wanted to tell the truth about Evans' death.

She hired Virginia attorney Shea Cook to go to the Keen Mountain Correctional Center to get a sworn statement form Brown. On July 2, Cook tape recorded Brown saying Turner did not participate in the murder. He did, though, help dispose of the victim's body.

After his conviction, Brown said he figured Turner would walk away innocent. "I was surprised, honestly, still surprised, that they convicted him," Brown said.

Cook called Summitt at her Bloomington home to tell her about the conversation. She drove to Virginia to get the document. "It still wasn't typed up when I got there," she said. "So I waited until it was done."

She left the lawyer's office confident that she held in her hands her son's ticket out of jail.

But Summitt didn't know her battle to free her son was just beginning. She didn't know about Virginia's 21-day rule.

RULE UNDER REVIEW

Under a 1976 state law, any new evidence discovered more than 21 days after a person is sentenced in a criminal case in Virginia cannot be heard in court.  The rule is strictly upheld; the only exception is DNA evidence.

Indiana is one of 20 states that has no time limit for the presentation of new and compelling evidence, said Monroe County Prosecutor Carl Salzmann. But new evidence must meet strict standards to bring about a review of a closed case.

A task force with members representing various aspects of the criminal justice system in Virginia currently is reviewing the 21-day rule. Critics of the law don't want the time limit extended. They want it abolished.

So does Summitt. Because unless Brown's new testimony is presented in court, her son's only other recourse is to seek clemency, a pardon from Virginia Gov. Mark Warner. Clemency, however, is not often granted.

Summitt hired David Hargett, an attorney in Richmond, Va., to compile a clemency petition. It is being written now and should be filed within a few weeks.

Hargett admits that clemency is hard to come by in Virginia. "It is a very rare thing, but I do believe we have a legitimate chance in this case," he said.  "And if we are not successful with the governor, we are hopeful that within the next two years or so there will be a change in the law that will allow us to have this case heard because of new evidence not available at trial."

He said intent of the 21-day rule was to bring an end, closure, to victims and their families. "However, the interests of an innocent person should always trump the interest in finality, and I think the Virginia legislators are finally coming to that realization."

Mike West is a paralegal working with Hargett on Turner's clemency petition. He said he's helped with many cases in which an inmate is seeking release from prison because of new evidence.

"Of all of the folks whose cases I've worked on, Dusty is one I firmly believe is innocent of the charges of which he has been convicted," West said.

LAWYER SKEPTICAL

Virginia's Office of the Secretary of the Commonwealth will receive the clemency request and determine if it warrants investigation by the state parole board. It could be a year or more before a decision is made.

In a letter about the case, Virginia senior assistant attorney general Robert Anderson said he wasn't swayed by Brown's new story. He said that as recently as November 2001, Brown filed an appeal in his own case stating that at most, he was an accessory after the fact and that Turner indeed killed Evans.

"As a legal matter, even if Brown now were to disavow his statements to the police given years ago, the law regards such recantations with great skepticism."

Richard Brydges, who represented Turner during his trial, said the prosecutor conceded that Brown most likely killed Evans. But because Turner was there, and did not stop the attack, he was just as guilty under the law.

He said that if Brown had said at the trial what he is saying today, it might not have made a difference in the jurors' minds. "If they thought he was there while it was going on and did nothing to stop it, they could find him guilty of the same charges filed against the actual killer," he said. "Dusty compounded his involvement by taking off and hiding the body."

Brydges hopes Turner finds relief through the court system, but is skeptical of his chance at success.  "People recant every day and the judges usually don't give that much emphasis," he said. "But I certainly hope they do in this case, for the sake of that boy and his family."

SIMPLE PLEASURES

Turner acknowledges using bad judgment the night Jennifer Evans was killed and in the following days as he lied to police about his and Brown's involvement.  He and Brown had been together in SEAL training, side by side as "swim buddies," for 18 months, and he said he trusted him like a brother. He vowed to lie for Brown, but ended up confessing after he failed a lie detector test.

"This was the guy that checked my parachute, checked my dive gear, the guy I could absolutely trust on the battle field," he said. "I felt an obligation to him.  I was trying to protect him, then I found out he was saying I did it and he didn't do it."

He figured if he told the truth, he would have to testify against Brown. Instead, he was arrested right long with him.

He's thankful that Brown came forward, but still angry that his friend lied about what happened that night.  "I hope one day I can forgive him, but it's hard to say right now if I could ever do that because I've been sitting here in prison for eight years for something I did not do," Turner said. "And the turmoil my family and friends have gone through has been unimaginable."

Turner is confident his clemency petition will be granted. He admits to being guilty of being an accessory to murder after the fact, a crime punishable by up to one year in jail in Virginia.

But he's also aware of the possibility is may not be granted. "Unfortunately, I know how the Virginia system works and I know that being innocent does not equate to being free," he said.

At the time of his arrest, Turner was the youngest Navy SEAL trainee in his platoon. He was proud of his accomplishments. He had played baseball and basketball at South and was a competitive swimmer who went to the state finals his senior year. He attended Clear Creek Christian Church, down the street from the house where he grew up, and was never in much trouble as a kid. He had no criminal record before his arrest for murder.

"It's been 10 years since I left Bloomington for the Navy, but it seems more like the blink of an eye," he said. "More than anything else, I want to come back to Bloomington, back home, to my family. I think it is possible. I am not guilty of the charges I am in here for. I wanted to fight for this county and its freedoms, yet the same system I was fighting for has wrongly convicted me. I have had to keep hope that justice, in the end, would come back around."

He cannot imagine spending the rest of his life in prison in the mountains of Virginia, where he works out every day and teaches other inmates how to read.

"It can't happen," he said of a life sentence. "It just can't."

He longs for life beyond razor-wire fences and the simple pleasures in life bread sticks at Noble Roman's, hunting for mushrooms in Indiana's marshy springtime woods.

His mother intends to make it real. "If we can just get someone to listen to us," Summitt said, "because I will not accept that my son will spend the rest of his life in jail for something he didn't do."