Posted on January 26, 2010 at 10:58 AM
Updated yesterday at 6:14 PM
RICHMOND (AP) -- As it reviewed the murder and abduction convictions of a former Navy SEAL trainee, a Virginia appeals court pressed Tuesday for an explanation why two written confessions by another man differ on key details of the slaying.
Questions about the conflicting affidavits dominated a half-hour hearing by the full Court of Appeals, which is considering whether Dustin Turner of Bloomington, Ind., should be exonerated in the 1995 slaying of 21-year-old Georgia college student Jennifer Evans outside a Virginia Beach nightclub. The court's decision, expected in a few weeks, is likely to be appealed to the Virginia Supreme Court.
A circuit court judge and a three-judge panel of the appeals court have ruled that Turner should be exonerated and that Billy Joe Brown's testimony that he alone killed Evans is credible. The state attorney general's office appealed to the full appeals court.
Turner's lawyer, David Hargett, had barely begun his opening statement when Judge D. Arthur Kelsey stopped him to ask why there were two affidavits from Brown. One supports Turner's claim that Evans died instantly when Brown strangled her. The other says Evans was choked into unconsciousness, woke up after a few minutes, then was strangled.
Hargett said he was not aware there was a second affidavit until long after he filed Turner's petition for a writ of actual innocence.
Robert Anderson of the attorney general's office said he discovered that the affidavit in his files differed from the one submitted by Turner after the circuit court ruling, but before the hearing by the three-judge panel. He said the discrepancies raise doubts about Brown's credibility.
"I brought out that there were two different versions of the affidavit," Anderson said, but the appeals panel gave little weight to the issue. The panel ruled 2-1 that no rational jury would have convicted Turner had Brown taken full responsibility from the beginning.
Hargett said the three-judge panel appropriately gave more credence to Brown's circuit court testimony than the differences in the written confessions. Brown, another former SEAL trainee from Dayton, Ohio, testified that he killed Evans and all Turner did was help him dispose of the body.
"If he acted independently of Mr. Turner," Hargett said, "Mr. Turner can be guilty of no crime other than accessory after the fact."
Accessory after the fact is a misdemeanor punishable by up to a year in jail. Turner already has served nearly 15 years of an 82-year prison sentence. Brown, who is serving 72 years, initially blamed Turner for the killing but changed his story after saying he became a Christian in prison.
Relatives of Turner and Evans attended Tuesday's appeals court hearing. Turner's mother, Linda Summitt, said she was disappointed that the hearing was so short and that the judges focused so much on the discrepancies in the affidavits.
"But I think they know the truth, they will see it and will actually be on our side," Summitt said.
Evans' mother, Delores Evans of Tucker, Ga., said she was encouraged that the court seemed concerned that Brown has given differing accounts of the crime.
"He's told so many stories I don't see how a judge can say which one is right," she said.
Two appeals court judges did not participate in the hearing: former Attorney General Randolph A. Beales and Robert J. Humphreys. Humphreys was the prosecutor in Turner's case before being appointed to the bench.
The Va. Court of Appeals clerk told 13News that the hearing lasted about half an hour and that a ruling isn't expected for several months.
(Copyright 2010 by The Associated Press. All Rights Reserved.)