One Fateful Word


One Fateful Word

Is it possible today for a person to be condemned to life in prison due to a single word? Surely not! Having reviewed this man’s case most thoroughly, I am convinced that, indeed, if an alternate word was presented he would be free instead of serving a life sentence without the possibility of parole. But, people are incarcerated for their deeds, not due to mere words, right? Well, having read the transcripts, reviewed all the evidence, and become intimately familiar with every aspect of this man’s case, I shall explain this seemingly ridiculous note. Oh, and one more tidbit to note in this preface: this man is me.

Some Background
Billy Joe Brown killed an innocent young woman named Jennifer Lea Evans in the summer of 1995, and blamed me for his vile deeds. As he later wrote, he felt that since I “broke the (Navy) SEAL code” by telling the authorities what had happened, he was going to take me down with him. And he did.

He claims now that he assumed I was only going to spend a few weeks in jail before the authorities figured out what he had done. If he would have told the truth from the beginning I would never have been charged with these crimes. Instead, a largely circumstantial case was made against me for the abduction with intent to defile and first-degree murder, based on his made-up statements. Yet, since Billy made them up on the spot when confronted by the detectives with the information I provided them, his stories were riddled with holes. These obvious inconsistencies could have been investigated and discovered within hours, certainly within days.
Too many forces were working against me. Then Commonwealth Attorney, Robert J. Humphreys (now a judge on the Court of Appeals), had no moral problem with convicting innocent people. While he was prosecuting my case, Troy Webb, one of at least three innocent men previously prosecuted from his office, was exonerated. Humphreys stated, “But I don’t lose any sleep over it because, frankly, it’s not our job to determine guilt or innocent.” I firmly believe that he knows I am innocent of the crimes for which he prosecuted me, and I also know that he loses no sleep over it.

Around 1999, with the encouragement of fellow prisoners, Billy Brown became ‘born again’ and dedicated his life to Jesus Christ. I don’t believe it actually happened overnight, but this led to the confession of what he had done. He came clean to his newfound Christian brothers, to his family, and to his lawyer. More recently he said that he didn’t initially tell his family, both because they had retained a lawyer for him and he couldn’t bear the shame of revealing to them what he had done. In 2002, I found out about his Christian conversion and confession after being transferred to Augusta Correctional Center and coming across one of his religious buddies.

In Virginia, once a person had been convicted of a crime, no new evidence proving innocence could be brought up in any court. In 2001, DNA proof of innocence was finally allowed to be reviewed by the Supreme Court of Virginia. In 2004, the Writ of Actual Innocence for non-biological evidence was passed into law, allowing for newly discovered evidence to be brought before the Court of Appeals.

The Writ of Actual Innocence
As created, in order for this writ to be granted, one must prove that the evidence is newly discovered, i.e., not discoverable at the time of the trial; that it is material;

not merely corroborative, accumulative, or collaborative; and that, if presented with all other evidence, no rational juror could find guilt beyond a reasonable doubt. This became the most demanding writ in the Commonwealth of Virginia. If granted, the Court wouldn’t simply declare someone ‘not guilty’, but ‘actually innocent’, a declaration virtually unheard of prior to this writ. From it’s inception in 2004 until March 1, 2018, not one of these writ, contested by the Commonwealth, had been granted.

The Carpitcher Case
A young girl testified that her mother’s boyfriend, Carpitcher, sexually abused her. Years later this child told the authorities that he didn’t actually touch her, but that she made up the story to get him out of the house. Carpitcher filed the Writ of Actual Innocence directly before we filed ours, so it was of interest to me. The Court ordered an evidentiary hearing to determine if the young girl’s recantation was credible. Since the Appeals Court cannot question witnesses, the original circuit court of the trial is tasked with this determination.

After the evidentiary hearing and reviewing the entire record, the presiding judge reached the conclusion: he could not determine if she told the truth then or if she is telling the truth now. This means that the girl’s recantation was not credible. The Commonwealth’s attorney argued that “the Court MUST abide by the findings of the evidentiary hearing” and if the main witness/victim is not credible in her recantation then Carpitcher cannot be declared ‘actually innocent’. The judges agreed and Carpitcher – whom I was at a prison with many years ago – is still locked up.

The Turner Case
My attorney, David Hargett, filed the Writ of Actual Innocence on my behalf. It, too, was remanded back to the court in which I was convicted to determine if Billy Brown’s confession was credible. Over the course of two days, he, one of his Christian brothers, and I testified for many hours. It was the first time I had seen him in about 15 years. I literally cringed sitting only a few yards away from him while he was on the stand. What mostly stood out to me was his odd voice and his penchant for rattling off Biblical verses by rote to justify his actions. After the hearing, Judge Frederick Lowe said he would schedule a date to announce his determination in a month, so that he could thoroughly examine the entire record.

A month later, David was permitted to speak to me while I sat in the holding cell awaiting Judge Lowe’s decision. He basically told me that if the decision was negative we could, theoretically, appeal it, but it would certainly be worthless. I just knew that my entire future rested upon what Judge Lowe was about to say. Moments later the officers escorted me into the courtroom. Judge Lowe immediately began explaining what he was tasked with and how he came to his decision. He stated, “This court has come to the conclusion that aside from the testimony of Mr. Brown and Mr. Turner, that the evidence in both of those previous trials was largely, if not completely, circumstantial.”

Most important was his ultimate ruling concerning the chief reason for the hearing: is Billy Brown’s confession truthful? “And this court finally finds,” Lowe began, as my heart stopped beating, “that Brown is credible in his assertion that he acted independently in murdering the victim and that Mr. Turner had no role in the murder or in the restraining of the victim.” YES! Finally, the truth has been verified, not only by a judge, but one presiding in the very same court where I was convicted! Within hours my family and friends were celebrating with champagne.

The Commonwealth’s attorney attempted to argue that the Court of Appeals wasn’t really required to abide by the determination of the evidentiary hearing, but otherwise there was little else they could argue. Do recall from the Carpitcher
case that the Commonwealth’s attorney argued the exact opposite. So, the three- judge panel reached their decision: I was actually innocent of the charges I was convicted of, but that I was guilty of the misdemeanor crime of accessory after the fact of a felony (punishable by up to 12 months in jail). I was expecting to be the first person released from prison in Virginia after having been declared actually innocent by the Court of Appeals. So, why wasn’t I?… Because of One Fateful Word.

The Haynesworth Case
Thomas Haynesworth was arrested and charged in 1984 with the rape of four separate women. One of these cases was not prosecuted, but he was convicted of the other three. In 2009, DNA proved that another man, the so-called “Black Ninja”, was responsible for two of these four sexual assaults. The remaining two cases involved no DNA evidence, but seemed to fit a common scheme as the others. Attorney General Ken Cuccinelli, the Innocence Project, along with prosecutors and many others believed in Haynesworth’s innocence.

In 2011, after spending 27 years in the Department of Corrections, Haynesworth was granted parole and immediately filed for the Writ of Actual Innocence. Even with the backing of what seemed like the entire Commonwealth and no one opposing him, the decision from the full Court of Appeals was split 5-4, in favor of granting him the writ. The dissenting opinion, written in part by Robert Humphreys, suggested that having the Attorney General’s, and others, support was not enough to overcome the rigid demands of the writ. More people were realizing its standards were ridiculously too high.

Could or Would?
In 2007, the spokesman for the Attorney general Bob McDonnell said, “The law is working as it should… The fact that no writs have been awarded is a demonstration that the judicial system in Virginia is fair and reliable.” There was criticism from the beginning that the hurdles were entirely too high and the procedures were too complicated. By 2013, hundreds of writs were filed, yet not a sign individual had been freed.

After my devastating failed attempt at the Writ of Actual Innocence, which became final in 2011, and Haynesworth barely squeaking by in 2012, the General Assembly agreed that the writ was entirely too demanding. In 2013, they legislated the change of one word within the writ. More precisely, one mere letter was altered, from ‘c’ to ‘w’, which completely changed the hurdle one must overcome to prove actual innocence. The updated standard became, with the newly discovered evidence, that “no rational juror WOULD find guilt beyond a reasonable doubt.” To fully understand the significance of this change we must look at another case.

The Watford Case
Many decades ago, Roy L. Watford III, a black man, was found guilty of the rape of a young girl. The case was completely mishandled. Apparently his guilt was in serious question, because, remarkably, Watford was not give any jail time. He did, however, live with being a convicted sexual predator… until March 1, 2018.

Not only was he finally granted a writ of actual innocence, but his case set precedent. This was the first Writ of Actual Innocence, unsupported by the Attorney General’s office, to be granted. It was a unanimous decision and was the first opportunity for the Virginia Supreme Court to clarify the significance of the change from ‘could’ to ‘would’. The decision was written by Justice Cleo Powell, who happened to play a very significant role in my still sitting in prison. The following are some excerpts:

In this context, the word “could” is the conditional form of “can” and denotes the conditional ability to perform some act… [I]t has been recognized that “the use of the word ‘could’ focuses the inquiry on the power of the trier of fact to reach its conclusion.”
By changing “could” to “would”, the General Assembly has fundamentally changed the nature of our inquiry in actual innocence cases. The General Assembly’s amendment of the actual innocence statuses has shifted the focus from the jury’s raw ability to convict (the “could” standard) to the jury’s volition to convict (the “would” standard), thereby significantly broadening the scope of our review in considering whether or not to grant a writ of actual innocence.

Now that the writ has experienced a significant change, why don’t I simply file another one under the new wording? The Writ of Actual Innocence is a one shot deal. Although there have been attempts to provide a “second bite at the apple” through legislation, no such laws have been passed. Therefore, my only recourse is to petition the Governor for a pardon.

The Fishback Case
In my life there have been many strange or ironic coincidences, a couple of which are relevant to the subject of this article. I was paired with Billy because we were the same height. Since I fractured both tibias and he fractured his femur during SEAL training, we were put on medical hold together, rehabbed together, and classed back up with the same training class. Later, we went to Army Airborne school together, both of us were put on the same SEAL team and even in the same platoon. In hindsight, it seems I was fated to be with him.

I explained how I fell within the ‘Could gap’ of the Writ of Actual Innocence. In 1995, the year that Billy killed Jennifer, Virginia just happened to abolish parole. If I were under the parole system I would have gone before the parole board each year for the past 10 years or so.

In 2000, Fishback argued that it was unconstitutional for juries not to be told there was no longer parole in Virginia. Not only were jurors not being notified that there was no parole, judges were strictly prohibited from mentioning it. Since 2000, because of the Fishback case, all jurors must be informed of this. But what about all of those cases from 1995 to 2000 in which jurors were not told? Did they sentence the defendant assuming there was parole? Today there are around 300 people incarcerated in Virginia who fall within this “Fishback gap”, and I am one of them. People know we were potentially sentenced unfairly, but what can be done about it? In a letter to the Governor requesting my release from prison, the jury foreman from my trial also explained that they had asked the judge if I would have an opportunity for parole, yet were given no answer.

The Word
At the onset of this article I suggested that I am currently doing a life sentence with no possibility of parole due to one word. So, what is this fateful word? Is it could or would? Fishback? No, the word is restraining.

When we filed the Writ of Actual Innocence, Circuit Court Judge Frederick Lowe was mainly tasked with answering the following question:

“Is Billy Brown’s confession credible in his assertion that he murdered Jennifer Evans independently and that Dustin Turner had no role in the murder or in the ‘restraining’ of the victim.”

This, obviously, relates to both the prosecutors’ theory presented at my trial and the two charges I was convicted of. The answer to the above question SHOULD determine whether or not I am guilty or innocent. When the three-judge panel of the Court of Appeals ruled that I was ‘actually innocent’, one of the three disagreed. Judge Cleo Powell, in her dissenting opinion, creating a new theory – never dreamed of previously and never put before a jury – in order to circumvent Judge Lowe’s ruling. She suggested that an abduction does not necessitate ‘restraint’ and, therefore a jury ‘could’ believe that I abducted Jennifer “by deception” when we walked hand-in-hand from the club to my car. (Jennifer’s girlsfriends, whom I had met earlier, were due to pick her up within the coming minutes, hence the reason we went to the car to await them. Since I had secured a ride home for Billy with his reluctant ex-girlfriend, I didn’t expect to see him for the remainder of the night.) Further, that, in my head, I was presumably intending to defile her – the fact that I didn’t should not matter. Finally, she wrote, that if a jury ‘could’ believe this theory of abduction with intent to defile, it wouldn’t matter that Billy killed Jennifer, I could still be considered guilty under the ‘felony murder law.’

This new theory is absolutely ridiculous and without evidence to support it. Abduction by deception? This is precisely why the ‘could’ was sensibly changed to ‘would’. Yes, a jury ‘could’ have the raw ability to convict me under this ludicrous new theory, but what rational jury ‘would’? My release was appealed by the Attorney General’s office to the full Court of Appeals. The majority of these judges, as well as the Supreme Court of Virginia, agreed with Cleo Powell, that under her new theory, “a jury ‘could’ still find guilt” regardless of Billy’s truthful confession.

If the word ‘abduct’ would have been used in the question posed and answered by Judge Lowe, I neither ‘could’ nor ‘would’ be in prison today. I am in prison on a life sentence with no possibility of parole due to One Fateful Word!