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Beefier 'actual innocence' law urged

By Bill Sizemore
The Virginian-Pilot
© January 26, 2010
Used by permission

RICHMOND

The mother of a former Navy SEAL trainee whose murder conviction has been overturned in a precedent-setting case spent the day Monday lobbying the General Assembly to help others who claim innocence to clear their names.

Dustin Turner is the first - and so far only - person to get a murder conviction overturned under a 2004 law allowing prisoners to challenge their convictions based on non biological evidence of innocence that emerges after trial.

Turner, of Bloomington, Ind., has been behind bars nearly 15 years for the 1995 murder of Jennifer Evans, a Georgia college student who was vacationing at the Virginia Beach Oceanfront.

His conviction was reversed last year by a divided three-judge panel of the Virginia Court of Appeals on the basis of a confession by Turner's co-defendant and SEAL "swim buddy," Billy Joe Brown, that he alone was responsible for the slaying.

The state appealed that ruling to the full appeals court, which will hear oral arguments in the case this morning.

Linda Summitt, Turner's mother, lobbied for the 2004 law. She returned to Richmond on the eve of the court hearing, urging lawmakers to expand the law so it will help others. In an interview, Summitt said she and her son are cautiously optimistic that once the long legal process is concluded, Turner will win his freedom. But other exonerated people are still excluded from using the so-called "writ of actual innocence" law that Turner used.

"At least we have that avenue," she said. "But why I'm here today is, other people don't have that avenue. I'm here advocating for them."

An example is Arthur Lee Whitfield, a Norfolk man who spent 22 years in prison for rape before being exonerated by DNA evidence. He was freed on parole and ultimately pardoned by then-Gov. Timothy M. Kaine, but he is ineligible for a writ of actual innocence because the law applies only to people who are still incarcerated.

Inspired by the Whitfield case, Del. Kenny Alexander, D-Norfolk, is seeking to expand the law to include people who have been pardoned, paroled or otherwise released.

Alexander is one of the lawmakers Summitt visited Monday. His bill is expected to reach the House floor this week.

Among other things, Alexander said, his bill would allow exonerated people who have been released from prison to regain their civil rights, such as the right to vote, serve on juries and run for office. The measure also would allow them to seek compensation for wrongful imprisonment.

Summitt has worked tirelessly for her son's freedom since his arrest. He was sentenced to 82 years and Brown to 72 years in separate, highly publicized jury trials. Both are effectively life terms, since Virginia has abolished parole.

Turner has claimed innocence from the beginning, although he acknowledges he is guilty as an accessory after the fact because he helped Brown dispose of the body and cover up the crime. The maximum penalty for an accessory is a year in jail and a $2,500 fine.

The victim's family expressed disappointment in last year's decision reversing Turner's conviction and urged the state to appeal it.

Turner understands that his case is taking a long time to resolve because it is the first of its kind, Summitt said, but he believes that ultimately he will win his freedom.

He petitioned the appeals court for release in 2007. Once the full court rules on the case, either side can appeal to the state Supreme Court.

"It has been a long, hard road, that's for sure," Summitt said. "But he's not gearing up for failure. He's always been a positive thinker."

Bill Sizemore, (804) 697-1560, bill.sizemore@pilotonline.com