Richmond Times-Dispatch

Appeals court hears arguments in former SEAL's case

Judges of the Virginia Court of Appeals heard arguments yesterday in the case of a former Navy SEAL trainee who contends he is innocent of a 1995 murder.

Dustin Allen Turner, 34, was granted a writ of actual innocence in August by a split, three-judge panel of the court. But the state attorney general's office appealed, leading to yesterday's arguments before the full court.

It is unlikely, however, that the full court will resolve the question, because the losing side is expected to appeal the decision to the Virginia Supreme Court.

Turner was convicted in 1996 of the June 19, 1995, slaying of Jennifer Lynn Evans, 19, an Emory University student who left a Virginia Beach nightclub with Turner and fellow SEAL trainee Billy Joe Brown.

Evans was strangled while the three of them were inside a car, and her body was dumped off Interstate 64 in Newport News. Turner was sentenced to 82 years and Brown to 72 years. In 2002, Brown changed his story and said he alone killed Evans.

At the direction of the appeals court's three-judge panel, Judge Frederick B. Lowe of Virginia Beach Circuit Court held a hearing during which Brown testified that he strangled her while the car was still in the nightclub parking lot.

Lowe told the appeals court panel that he found Brown's account credible.

Much of the questioning from the judges yesterday concerned two affidavits given by Brown before Lowe's hearing and whether the differences in the affidavits raised questions about Brown's credibility or were of no consequence.

In one affidavit, Brown said he choked Evans once, she revived, and he choked her again. The other affidavit says there was one attack.

In questioning Turner's lawyer, David B. Hargett, Judge D. Arthur Kelsey said Lowe did not know that Brown had given two different versions of the crime in affidavits before finding Brown's confession was credible.

"I wasn't even aware there was a second affidavit," Hargett said. But, he said, the affidavits, conflicting or not, did not matter. Brown testified before the judge that he alone killed Evans and the judge found him credible, Hargett argued.

Even if the judge did not know there were two affidavits, Hargett said, the judge listened as the state cross-examined Brown about the affidavit in which he said he attacked Evans twice -- and Lowe still found his confession credible.

Robert H. Anderson III, a senior assistant attorney general, said after the hearing that, among other things, Brown's account that he choked Evans twice casts doubt on the contention that she was quickly killed in the parking lot.

Her parents, Delores and Al Evans of Georgia, who believe Turner is guilty, watched the arguments yesterday. "Brown has told so many different stories," Delores Evans said afterward.

Al Evans said that, in any case, Turner did nothing to stop his daughter's murder. "You can't sit there for as long as he did [while she was strangled] and not be an actual accomplice," he said.

Turner's mother, Linda Summitt of Indiana, said of yesterday's hearing, "I felt the judges were not really asking a lot of relevant questions." She said the matter involving the affidavits was handled in circuit court.

Nevertheless, she said she was still hopeful. "My son is innocent."

Lawyers involved in the case said they expect a decision in two to three months but stressed that there is no way of knowing when the court will rule.

Contact Frank Green at (804) 6496340 or fgreen @ timesdispatch. com