FREE DUSTY!

Published on HamptonRoads.com

Ruling boosts ex-SEAL trainee's chances of release from jail

VIRGINIA BEACH

Imprisoned ex-Navy SEAL trainee Dustin Turner got a major boost in his bid for freedom today when a judge ruled that his onetime SEAL "swim buddy," Billy Joe Brown, was credible in his confession to an infamous 1995 Oceanfront murder.

Circuit Judge Frederick Lowe's findings will be a key consideration when the Virginia Court of Appeals rules on Turner's petition for release. Turner filed the petition after Brown said in a sworn statement that he alone was responsible for the choking death of Georgia college student Jennifer Evans outside a beach nightspot.

If the appeals court rules in his favor, Turner would be the first Virginia prisoner released under a 2004 law allowing consideration of new nonbiological evidence of innocence after sentencing.

Both sides in the case said Lowe's ruling makes it likely that Turner will be freed.

"The court today has given justice a chance to prevail," said David Hargett, Turner's lawyer. "We still have one hurdle to overcome, but this ruling today provided us a gateway to make our case to the court of appeals that Dusty is innocent. We're confident the court will agree."

Commonwealth's Attorney Harvey Bryant said he was disappointed in the ruling but sees it as a turning point in the case: "I don't see that there are a lot of options now. It would appear that the conviction is going to be vacated."

Turner and Brown were convicted and sentenced to long prison terms in two highly publicized jury trials in 1996 after prosecutors acknowledged that they couldn't prove which man killed Evans.

At the time, each blamed the other. Brown changed his story in 2002, saying he had become a Christian and couldn't let an innocent man continue to pay for the crime.

Brown reiterated his confession on the witness stand at a hearing before Lowe last month.

Turner has claimed innocence since the murder, acknowledging only that he is guilty of being an accessory after the fact a misdemeanor punishable by no more than a year in jail because he helped Brown dispose of the body and cover up the crime.

In announcing his ruling, Lowe said assessing a witness' credibility is "probably the most difficult task any finder of fact must struggle with." He said he had carefully reviewed the evidence in the case and found that, while largely circumstantial, it was consistent with Brown's current version of events.

For Turner's family, today's ruling was a milestone in a 13-year campaign to win his freedom. They have depleted their retirement funds, double-mortgaged their home and borrowed money from family and friends to pay legal bills, which have topped $200,000.

"This is the first time we've ever had anything go our way," Larry Summitt, Turner's stepfather, said after the ruling.

Linda Summitt, Turner's mother, was instrumental in bringing Brown's confession to light. When she learned in 2002 that he had found religion and was ready to confess, she hired a lawyer to take his statement. She also secured corroborating statements from two former cellmates to whom Brown had confessed over the years.

But she soon learned that wasn't enough to open the prison doors. Virginia courts were still governed by a rule that prohibited introduction of new evidence in a criminal case beyond a 21-day window after sentencing the toughest such rule in the nation.

So Summitt joined lobbying efforts aimed at getting the rule eased. She spent days on the Oceanfront passing out pamphlets and getting signatures on petitions. She established a Web site with an online petition. Those efforts bore fruit with passage of the new law in 2004.

"We've never given up hope," she said Wednesday.

Delores Evans, the victim's mother, said even if Brown is telling the truth now, she is still not persuaded that the slaying occurred so quickly that Turner was powerless to prevent it.

"There are too many questions still in my mind," she said, adding that she and her husband, Al, "still think that the original trials had it right that both men were equally guilty under the law."

Bill Sizemore, (757) 446-2276, bill.sizemore@pilotonline.com