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Judges grill attorneys in ex-SEAL trainee's appeal for release

RICHMOND

Three state judges continued to plow new legal ground today in the case of an ex-Navy SEAL trainee who claims he was wrongfully imprisoned in a sensational 1995 Virginia Beach murder case.

Attorneys for both sides in the Dustin Turner case faced vigorous questioning from a three-judge panel of the Virginia Court of Appeals, which is expected to rule soon on Turner's petition for release after nearly 14 years behind bars.

If he is successful, Turner will be the first person freed in a Virginia murder case since the passage of a 2004 law allowing consideration of new nonbiological evidence of innocence after sentencing.

Last year the appeals court referred the matter to Virginia Beach Circuit Judge Frederick Lowe for a ruling on the credibility of a 2002 confession by Turner's co-defendant and SEAL "swim buddy," Billy Joe Brown, that he alone was responsible for the murder of Georgia college student Jennifer Evans.

After hearing testimony from Brown and Turner and reviewing the trial transcript, Lowe ruled Brown's confession credible.

That finding was at the crux of sharp, repeated questioning at today's hearing by two members of the panel, Judges Larry Elder and Cleo Powell.

Turner's lawyer, David Hargett, told the judges that since they delegated the credibility issue to Lowe, his ruling should stand.

"If it's credible, then it's true," Hargett said. "That was the whole purpose of this exercise."

In his confession, Brown said he had become a Christian in prison and could no longer allow an innocent man to pay for a crime he committed.

Assistant Attorney General Robert Anderson argued that Lowe's finding should be overturned, branding it "plainly wrong" and "a fortune-cookie finding one-sentence statements with no explanation."

"Are you suggesting that this court should now search the record for evidence that Brown was not credible?" Powell asked.

"It's up to this court to determine if the finding was fatally flawed, and I submit it was," Anderson replied.

Evans, a pre-medical student at Emory University, was staying with friends in Sandbridge on summer vacation. She was choked to death in Turner's car after the two met in the Bayou, a now-defunct Oceanfront nightspot.

After several days of questioning by police, Turner led them to Evans' decomposed body in a wooded Newport News park.

Turner, now 34, and Brown, 36, were convicted in separate jury trials that attracted intense media coverage. Turner was sentenced to 82 years and Brown 72 years. Since Virginia has abolished parole, both are effectively life terms.

Turner has proclaimed his innocence from the start, 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.

Brown gave several accounts of the murder but always blamed Turner until his 2002 confession.

Bill Sizemore, (757) 446-2276, bill.sizemore@pilotonline.com [1]

Source URL (retrieved on 04/14/2009 - 17:36): http://hamptonroads.com/2009/04/judges-grill-attorneys-exseal-trainees-appeal-release