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Turner gets new chance to prove his innocence
South graduate convicted of murder in 1996 sought new trial after co-defendant took full responsibility for crime

By Bethany Nolan 331-4373 | bnolan@heraldt.com
March 27, 2008

Clement Britt | Richmond, Va., Times-Dispatch
Dustin Turner, an inmate at Augusta Correctional Center in Virginia, is serving 82 years for abduction and murder.

New legislation in the state of Virginia has opened another avenue toward freedom in the case of a Bloomington man serving an 82-year prison sentence for the death of a Georgia college student.

Dustin Turner, a 1993 Bloomington High School South graduate, and fellow Navy SEAL trainee Billy Joe Brown were found guilty in 1996 of murdering Jennifer Evans, a pre-med student vacationing in Virginia Beach.

Since then, the Bloomington man has been trying to claim his innocence of a crime he says he didn't commit.

After his appeals were exhausted, Turner tried for a pardon. But in 2005, Virginia's governor denied his petition for clemency. He'd supported his claims of innocence with information from Brown, who had since accepted full responsibility for the slaying and declared Turner innocent. In addition, the foreman of the jury that convicted Turner wrote a letter supporting his appeal for a pardon.

But now, Turner will have a new day in court.

Turner's attorney, David Hargett, said Wednesday he filed for what's called a “Writ of Actual Innocence” in Turner's case. The Virginia legislature expanded its state law in 2005 to allow such claims to be filed based on new evidence other than new DNA testing. Before that, there was no legal remedy for new evidence not discovered within a 21-day window.

The writ can be sought if “the previously unknown or unavailable evidence is material and when considered with all of the other evidence in the current record, will prove that no rational trier of fact could have found proof of guilt beyond a reasonable doubt,” according to Virginia state code.

Hargett said he filed for the writ in July 2007. In November, the state attorney general filed a motion to dismiss that writ. However, Hargett's response to the motion to dismiss generated a recent court of appeals decision that will send the case back to Virginia Beach Circuit Court for an evidentiary hearing, he said.

At that hearing, the court will decide two factual details — whether or not Brown is credible in his claim that Turner didn't commit the murder, and whether that claim can be considered newly discovered evidence under the state's laws, Hargett said.

If those facts are decided in Turner's favor, the court of appeals will then decide whether “no rational trier of fact” could have found Turner guilty beyond a reasonable doubt.

“That's extremely demanding,” Hargett said. “Whatever the decision is by the court of appeals, someone is likely to appeal to the state supreme court. Either way, this case will come up in front of the Virginia Supreme Court.”

The Virginia Beach Circuit Court is still in the process of setting a date for the hearing, which Hargett said he expects will happen sometime in May.

Turner's mother, Bloomington resident Linda Summitt, said Wednesday she's “pretty excited” about the hearing and that her son believes the hearing might change his future.

“It's the only break we've had in years,” she said. But at the same time, she's wary after years of other setbacks. “You don't want to get your hopes up too high and your expectations,” she said.

Summitt said she expected to travel to Virginia to visit Turner in prison there this weekend, and will discuss the hearing and witness they believe Hargett should call to testify.