FREE DUSTY!

August 3, 2008

Ex-SEAL trainee seeks freedom in woman's slaying

By LARRY O'DELL Associated Press Writer

For 13 years, Dustin Turner has sat in prison claiming his fellow Navy SEAL trainee strangled a vacationing college student by himself, and for the past five years, the other suspect has admitted as much.

Turner's co-defendant, Billy Joe Brown, signed a sworn statement in 2003 saying he alone killed Jennifer L. Evans, who was abducted from a Virginia Beach bar.

It wasn't until a year later that Virginia legislators passed a bill relaxing the nation's toughest law governing new claims of innocence.

Now that a judge has deemed Brown's statement credible, Turner hopes the Virginia Court of Appeals will grant him freedom under the 2004 law allowing newly discovered evidence of innocence other than DNA. It is a feat that has eluded more than 120 other inmates.

"If you had asked me about my chances before the judge ruled, I'd have had a neutral response," Turner said in an interview at Powhatan Correctional Center . "Now it gives me tremendous hope."

"Dusty" Turner met Evans at a nightclub called the Bayou, where he and Brown had gone to unwind in June 1995 after a long week of training. Instructors had made Turner and Brown "swim buddies," which meant they were supposed to remain close and watch out for one another during training.

According to Turner, he and the 21-year-old Emory University premed student from Tucker, Ga. , hit it off and slipped out to listen to music and talk in his car. He claims a drunken and belligerent Brown got into the back and reached around the front passenger seat to strangle Evans.

Panicked and mindful of the SEALs rule that you never abandon your swim buddy, Turner said, he drove 30 miles to Newport News and helped Brown dump Evans' body in a wooded park.

Prosecutors at Turner's trial laid out a different scenario. They said he and Brown wanted to have sex with Evans and killed her when she resisted. Turner, they said, was more than a spectator.

One of those prosecutors was Robert J. Humphreys, who now sits on the appellate court considering Turner's petition. Humphreys maintained even after Brown changed his story, but before the innocence law was changed, that both men were legally responsible for Evans' death. He did not return a call for comment.

Court rules will automatically eliminate Humphreys from the three-judge panel that will consider the case.

Brown, of Dayton , Ohio , was not called as a witness at Turner's trial. He testified at his own trial that Evans was already dead when he got into the car and that he helped Turner dispose of the body. He now says he was just angry with Turner for cooperating with authorities.

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"I had never been in trouble before," said Turner, who found himself facing 82 years in prison far from his home in Bloomington , Ind. "My family and I didn't know where to turn, who to contact."

Turner's appeals failed. Brown, sentenced to 72 years, was sticking to his story. But even if his change of heart had come earlier, Virginia had a strict rule that required newly discovered evidence of innocence to be presented within three weeks of sentencing.

After advances in DNA testing showed some inmates were serving time for crimes they didn't commit, the General Assembly in 2002 created an exception to the 21-day rule for newly discovered biological evidence. No such evidence existed in Turner's case.

A year later, Brown took full responsibility for the crime, saying he had become a Christian.

"We were sitting there talking and the next thing you know I reached up and choked Jennifer," Brown said in a sworn affidavit. "I did this on my own without any prior discussion with Dustin Turner. He did not encourage me in any way and in fact, I remember one instance while I was choking Jennifer, Dustin trying to pull my hands away."

Even then, there was no judicial recourse because the 21-day rule still applied to non-DNA evidence. Turner's only avenue was to ask then-Gov. Mark R. Warner for clemency.

Meanwhile, legislators began considering eliminating the three-week deadline for all newly discovered evidence.

Turner, realizing the legislation could give him an opportunity to use Brown's confession in court, kept tabs from prison while the debate unfolded. His mother, Linda Summitt, lobbied for the bill.

After the law passed, Warner denied the clemency petition and "we were off and running," Turner said.

He was not alone. Other inmates' petitions were rejected, including some similar to his own, because they were based on recanted testimony. But his attorney, David Hargett, is confident Brown's confession meets the tough standard set by lawmakers.

"We're always concerned about what the other side has to say against us," Hargett said. "But if you present credible testimony of the actual murderer, it's hard to say someone would have found (Turner) guilty."

Andrew G. Wiggin, a Chesapeake attorney who specializes in post-conviction litigation, said Turner's prospects of success are "close to 100 percent."

A spokesman for Attorney General Bob McDonnell said he had no comment on Turner's case. Attempts to reach Evans' family were unsuccessful.

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Turner, while taking nothing for granted, is at least confident enough to begin pondering his future outside of prison. He wants to spend as much time as possible with family and pursue a degree in Germanic studies at Indiana University .

Would he carry any bitterness into his new life?

"I've had a lot of time to handle it," Turner said. "My most anger has been toward Billy Brown. He murdered an innocent young lady and sent me to prison and upset countless lives. But I'm not so angry anymore. I do still harbor some feeling toward the prosecutors, but it's not a hatred."

Brown has not asked for Turner's forgiveness, and Turner said he's not ready for that step anyway.

"Perhaps when I walk out these gates it'll be a different story," he said.