Court overturns ex-SEAL trainee's conviction in 1995 murder

After 14 years behind bars, one of two former Navy SEAL trainees convicted in a 1995 Virginia Beach murder case had his conviction overturned Tuesday by the Virginia Court of Appeals.

Dustin Turner is the first person in Virginia to get a murder conviction overturned under a 2004 law allowing consideration of new non-biological evidence of innocence after sentencing.

The appeals court granted Turner's petition for a writ of actual innocence under that law based on 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.

Turner is not yet free. His conviction was overturned in a split decision, 2-1, by a three-judge panel. Attorney General Bill Mims has the option of appealing that decision to the full 11-judge appeals court and, ultimately, to the state Supreme Court. Mims has not decided whether to appeal, a spokesman said.

Nevertheless, Turner's lawyer and family saw Tuesday's decision as a significant victory.

"We are very pleased that the court of appeals has ruled that Dusty is actually innocent in a legal sense," said David Hargett, Turner's lawyer. "We've always known that he was innocent factually. I think we got one step closer to justice."

For Linda Summitt, Turner's mother, the decision is a vindication of a 14-year effort to get her son freed. She was instrumental in securing Brown's confession and lobbied state lawmakers to pass the law that made Tuesday's decision possible.

Summitt, a schoolteacher in Bloomington, Ind., Turner's hometown, said that when she got the call from Hargett telling her of the decision, "I was so overwhelmed, I couldn't think clearly."

Delores Evans, the victim's mother, said she was disappointed but not surprised by the decision, which relied heavily on a ruling last year by Virginia Beach Circuit Judge Frederick Lowe that Brown's confession was credible.

"Jennifer's family very much encourages and hopes that Mr. Mims will allow this further appeal - that he will push it forward and try to receive the best justice that we can in this ordeal," said Evans, who lives in suburban Atlanta. "I firmly believe that Judge Lowe made a faulty decision."

Virginia Beach Commonwealth's Attorney Harvey Bryant said he too hopes Mims appeals the decision. It doesn't make sense that Turner simply stood by while the murder took place, Bryant said.

"I did not find Brown's testimony credible," he said. But, he added, "it wasn't my position to make that factual determination."

Jennifer Evans, a 21-year-old pre-med 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 at the Bayou, a now-defunct Oceanfront nightspot.

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

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. Turner is incarcerated in Powhatan Correctional Center near Richmond, Brown in Greensville Correctional Center near Emporia. 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 Evans' body and cover up the crime.

Since he has served far more time than that, Turner will qualify for immediate release if the state does not appeal Tuesday's decision. Any appeal would have to be filed within 30 days.

Brown gave several accounts of the murder but always blamed Turner until his 2002 confession, in which he said he had become a Christian in prison and could no longer allow an innocent man to pay for a crime he committed.

At the time of the trials, prosecutors acknowledged that they could not prove which of the two men killed Evans.

They charged them both with murder and abduction with intent to defile, arguing that they conspired to kidnap Evans for the purpose of a sexual assault and that she was killed in the process, perhaps accidentally.

In Tuesday's majority opinion, Judge Larry Elder and Senior Judge Sam Coleman wrote that if Brown's confession had been available at the time of Turner's trial, "we conclude that no rational trier of fact could have found Turner guilty" of those charges.

In her dissent, Judge Cleo Powell wrote that evidence in the case - including testimony from a fellow SEAL trainee that Turner told him he and Brown intended to have a "threesome" with Evans - suggested that "Turner intended to have sexual relations with Evans against her will."

The majority opinion rejected that notion, arguing that even if Turner had hoped to have sex with Evans, there was no evidence that he intended to do it by force.

"Turner did not make Evans uncomfortable," the judges wrote, "to the contrary, she appeared to have enjoyed his company."

Turner, a multi-sport high school athlete, junior church deacon and Boy Scout, had no criminal record before the Evans murder.

Brown was a high school dropout. When he was 17, he beat up his 14-year-old wife in front of several police officers in his hometown of Huber Heights, Ohio, according to court records. Later he was discharged from the Coast Guard under other-than-honorable conditions for assaulting a superior officer.

If Tuesday's decision is appealed to the full appeals court, one member of that court will be unable to participate.

Judge Robert Humphreys was the Virginia Beach commonwealth's attorney who prosecuted Turner and Brown in 1996.

Pilot writer Kathy Adams contributed to this report.

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