During Dusty’s encounter with Jennifer and her friends, Brown was somewhere else in the club getting drunker.  A bit before 1:00 a.m. Jennifer and Dusty walked out the rear door into the lobby to the restrooms.  Dusty sat in a plush chair, when Jennifer came out of the restroom she sat on the arm of the chair and they talked for a few minutes.  She said she wasn't ready to leave but her friend, Andria, had a headache and wanted to leave.  She thought Andria was just being a party pooper.   Jennifer followed the girls and Dusty walked with her.  Jennifer asked the bouncer at the back door for a pen and paper, however he didn’t have one so Dusty got one from the bartender and gave it to Jennifer.  She wrote the phone number where she was staying on a napkin.  They planned for him to drop Billy Brown off at the barracks, call her for directions and pick her up and spend some time on the beach.

They continued to follow Jennifer’s friends out of the 19 St. entrance to the club.  Jennifer asked, “Well, can I at least get a hug.”  Dusty obliged and told her he’d walk her to the car to make sure she was safe.  The girls were there and impatiently waiting, so he opened the rear door, Jennifer got in, and he closed it behind her.  She rolled the window down to say goodbye, and he assured her he’d call as soon as he dropped Brown off.  “No you won’t,” Andria cut in, “we’ve got kids in the house and everyone will be asleep.”   “ Okay, I don’t want to cause any problems,” was his reply.   He told Jennifer that he hoped to see her next week, but he knew that he would be training at A.P. Hill that week and that she was to leave to go back to Georgia.  They realized they probably wouldn’t see each other again.

Jennifer was clearly upset and begged Andria to let her stay for awhile longer and Dusty suggested that he could bring her back home later.  One of her friends asked him if he knew where Sandbridge was and he replied that he thought it was close to Chick’s Beach.  They laughed at him realizing he knew nothing of the area, but they agreed to let Jennifer stay until closing (2:00 a.m.), while they went for coffee.  The plan was that at 2:00 a.m. the girls would park in the same spot to pick up Jennifer.  They were happy with that, Dusty opened her door and they walked hand in hand back to the club.

They walked back into the club and spent several minutes before deciding that they might still be able to take that walk on the beach if they could convince Andria and Michelle to let Dusty take Jennifer home and if they could get a ride home for Billy Joe.  Dusty first asked the other SEAL, Julio, if he could take Billy home.  Julio explained that he did not live near the area so Dusty then asked Kristen.  Kristen agreed as long as Billy knew that it was just to be a ride home, and nothing more.  When Dusty explain this to Billy he became belligerent and displayed anger at his ex-girlfriend's remark.  Dusty told Kristen that if he wasn’t back by 2:00 a.m.  that she should take Billy home. He hoped that perhaps Jennifer would convince her friends to let her stay longer.

Jennifer was in the restroom during all of this, Billy asked Dusty where he was going with “that chick,” and Dusty explained.  Billy was slurring his words and asked Dusty what the chances were for him to “get it on with her too.”  Then Julio walked up to them and asked what their plans were for the night.  Billy said something to the effect “I’m trying to get a threesome going.”  Jennifer walked over to Dusty and they walked towards the back door.  They sat in the lobby, away from the loud noises of the club, and talked for 10 or 15 minutes.  Around 1:50 they decided to go sit in Dusty’s car to listen to CDs and wait for her friends to return.  They were in the car no longer than 5 min. before Dusty saw Billy stumbling towards the car.  As he was nearing, Dusty warned Jennifer “Don’t pay any attention to him, he’s wasted.”

As Billy opened the door Jennifer pulled her seat forward and he climbed in behind her.  The second he got in he was angrily slurring his words, “You thought you could f---ing leave me, huh?” Dusty replied,  “I thought Kristen was taking you home!”   He yelled, “well f--- that bitch”, and then he turned his attention to Jennifer.  He began talking to her, vulgarly and suggestively:  “You’re a virgin aren’t you?  Have you ever slept with a frogman?” He kept badgering her with questions.  He had only been in the car a minute or two and Dusty was getting fed up with him.  Dusty told him to either chill out or leave and find Kristen; this angered him even more.  He continued toying with Jennifer; using his right hand he touched Jennifer’s hair and made a comment to her.  Jennifer had not said anything to him but when he touched her she slapped his hand and he snapped.

Dusty had been adjusting his CD player and wasn’t looking directly at Billy. He was still talking to him, telling him that he needed to leave the car and find Kristen.  He didn’t see Billy’s initial move directly, but felt it instead.  Out of the corner of his eye he caught a quick movement, felt the car shake and saw Jennifer’s arm go limp.  Billy had just thrown all 220 pounds of his drunken body into a forceful arm choke around Jennifer’s neck and killed her instantly.  Dusty began clawing and prying Billy’s hands off of her and yelling, “Let her go, just let her go!” Dusty smelled the strong smell of urine as he pried Billy's arms off her.  Her body continued to slump towards the window.  He sat there staring in a total state of confusion not comprehending what had just happened.  Billy realizing what he had done began yelling at Dusty to drive away.  Dusty, unable to comprehend just starred at him.  Brown continued to yell, “Drive.  Just F-ing Drive!”

Dusty sat there in total shock and disbelief.  The awareness of his swim buddy’s voice, yelling at him, telling him what to do, the same as he had been hearing and listening to for months now, caused him to react.  Panic-stricken and frightened he stopped thinking and just began to drive.  He didn’t leave his buddy he didn’t call for help instead he reacted according to his training, the training that teaches one to never leave a swim buddy, no matter what.  From the very beginning, the rules and the importance of the swim buddy are drilled into the trainees.  They are punished if they do not strictly adhere to those rules.  The drilling process begins in a way that will condition the young trainees to learn, listen, and follow the guidelines set before them.  It is drilled into them that the chain of importance is as follows:

1) Swim Buddy

2) Firing Squad

3) Platoon

4) Team

5) Family

6) God

7) Navy

During training, the trainees are subjected to intense physical abuse.  It is this physical intensity of the training that causes so many SEAL trainees to quit.  During these exercises the trainees are taught to rely on each other’s skill, knowledge and strength to make it through, and they specifically rely on their assigned swim buddy.  In fact, if they wander away farther than six feet from their swim buddy they are severely punished.  The punishment can include being submerged in cold water for a long period of time, running, in the intense heat, until the trainee drops, and being bound together, by a rope for days at a time.

Reacting to his training, Dusty helped his swim buddy conceal the crime, and he lied when he first spoke with investigators.  This behavior of a frightened 20-year-old, resulted in his being sentenced to 82 years in prison.

As Dusty pulled out of the parking lot Billy began dictating directions; turn left, turn right, etc.  Billy knew the area much better than Dusty, so Dusty simply listened and obeyed.  Billy tilted Jennifer’s seat back to a reclining position at the same time he was saying, "We need to get on the highway; we have to go out of the state."  Dusty was gripping the steering wheel, concentrating on the road but saw Billy doing something out the corner of his eye.  He turned when he realized Billy was fondling Jennifer's body.  He couldn’t believe it.  Billy had pulled her top over her breasts and was trying to unbutton her shorts.  Dusty had to fight the waves of nausea.  He yelled at Billy to stop touching her.  At that point Billy sat back while Dusty drove aimlessly, clueless of where they were or where they were headed.

He drove in shock not knowing what to do.  As shock wore off and became despair, Dusty finally realized what had happened and how much trouble they were in.  But he also knew that the police would not believe him, the Navy would not believe him.  He figured that the only way out now was to help his buddy hide the body.  It was a big mistake, he now realizes, one he will regret for the rest of his life.  But at the time all he could think about was his swim buddy's safety and the training drilled in him to become a Navy SEAL.  If only he had gone straight to the police.  If only…But it was too late.  He pulled off at an exit to an intersection and turned until he came upon a dirt road, which headed into the woods.  Dusty jumped out, Brown followed out his door.   They ran around to the passenger side and opened the door.  Dusty grabbed Jennifer’s wrists, Billy grabbed her ankles and they carried her about 30 yards into the woods.

Dusty realized that they couldn’t just leave her like that.  He went back to the car searching for something to cover her with.  After a quick search of the car he ran back empty-handed.  He stumbled through the darkness not being able to see where he had left Billy standing.  He couldn’t see him because as he approached he realized Billy was on top of Jennifer’s body.  Dusty grabbed him by the shirt and started yelling at him.  Looking down he could see that Billy had pulled Jennifer's underpants down around one of her ankles and her bra was up.  As Billy stood up his pants were unbuttoned, unzipped and he said, “I couldn’t get a hard-on any way, she's dead.”  They began sweeping some leaves and twigs over her body then hurried back to the car.  Dusty was overcome with emotion and openly wept as he helped conceal Jennifer's body.

Billy Brown sat in the passenger seat then stood back up, he made a comment about not sitting in the wet seat and he got back into the back seat.  He kept saying that he was hungry and wanted to stop somewhere to eat.  When they arrived at the base Billy kept complaining about food, Dusty couldn’t believe Billy could think about food when he himself was still fighting nausea.  But they stopped at a cafe and Billy Joe ate a sandwich and Dusty drank some ice water. 

Dusty later cooperated with the authorities, gave them detailed information about what had happened, and directed them to the girl’s body.  Unfortunately, he did all of this without the advice of an attorney.  Even though he had the good sense to tell the detectives he needed to speak with his Warrant Officer,Jeffrey Okonek.  Warrant Officer Okonek, after calling a JAG Officer (Judge Advocate General) ill advised him.  The officers told him it was not a military issue, and both Okonek and the JAG officer gave the impression that Dusty didn’t need legal help because he was, in reality only a witness.  Without legal representation or advice, Dusty told the detectives the truth.

Attorney Michael Ashe was at first called upon to represent Dusty.  He believed in Dusty and really wanted to help him.  However it was later decided by Dusty’s family to change attorneys, they chose Brydges, Mahan and O’Brien.  The family not realizing that Dick Bridges was considered “One of the Good Old Boys” of Virginia Beach hired him.   Mr. Brydges explained the charges against Dusty to his family.  They were murder, abduction, attempted rape and rape with and inanimate object.  These were the same as the charges against Billy Brown.   Mr. Brydges was a friend of the prosecuting attorneys and he explained that he felt that they would come to Dusty for a plea bargain and use his testimony to help prosecute Billy Brown.  Mr. Brydges guessed that they would only end up charging Dusty with Accessory After The Fact.

Mr. Ashe made a written list of the things he had accomplished and of what he felt should still be done.  He was adamant that they be given to the new attorneys immediately, and followed through.  The list included hiring a neutral person to perform an autopsy and obtaining an independent forensic pathologist. He explained that Dusty had made a statement to the police, which was, “I’m glad that you have impounded my car, because if you check the front seat, you’ll find proof of what I told you.”  Dusty had been referring to urine.  Which he knew was on the seat. 

Although Mr. Ashe’s written instructions and requests from the family, including asking for a change of venue, were given to the defense attorneys, the request never occurred.  Dick Brydges referred to Mr. Ashe as a bicycle attorney and never followed up on any of his request.  In fact, he was quite adamant about not having another autopsy, stating that we had to allow the victims family to have a funeral or we would have a lot of bad publicity.  As far as obtaining an independent Forensic Pathologist, Mr. Brydges replied that the state had expert forensic pathologist and they would examine the car with a "fine-toothed comb."  When asking Steve Mahan about the request, his comment was always about money, “Now you know that’s going to cost a lot of money,” but he never actually told how much it cost and the family assumed that the request was being taken care of.   As far as a change of venue, Dusty and his family always thought that Mr. Brydges or Mr. Mahan would eventually file for that.

Before the preliminary hearing, there had been much media attention and notoriety given to the case.  There were many interviews conducted with the police who organized a scholarship fund, in behalf of the victim, Jennifer Evans.  There were interviews with Billy Brown’s attorney, the defense attorneys and the prosecuting attorneys.  It was appalling to listen to some of the statements.  Brown’s attorney, Andrew Sacks, was cocky and sure of himself, always stating his client’s innocence and how he was going to prove it, because Dusty was the guilty one.  Dusty’s attorney, Dick Brydges, was just as confident, stating he had the good-looking defendant, the one who led the detectives to the truth.  But it was the prosecuting attorneys, Robert Humphreys and Albert Alberi's, statements that were the most bothersome.  They had already concluded that Brown had killed the victim and referring to Dusty, they said, “It doesn’t matter who killed her, if he was present at the time, in the state of Virginia, he is just as guilty.”  (This is documented on tape).  Is that the kind of law Virginia really has, to convict an innocent person just because he or she was present at crime?   When questioned about how they were able to build a case and make the charges stick, considering there was no real evidence, only circumstantial, the prosecuting attorneys would mention their theories, theories they concluded from one of the three stories that Brown had told.

The media attention never stopped.   Magazine articles were written.  In one publication the facts of Brown's past were revealed.  At age 17 Billy had been in a scuffle with three police officers after assaulting his pregnant 14-year old wife.  It was also revealed that Billy had been discharged from the Coast Guards.  The TV program, A Current Affair held an interview with Dusty’s mother.  She was impressed with the young man who compassionately expressed his sympathy about Dusty’s plight and seemed so sincere in his belief of her son’s innocence.  She willingly gave them pictures and information.  After waiting anxiously the family watched in horror as Dusty was portrayed along with Brown as a bad apple that slipped into the Navy SEALs.  The sympathy was to be only for the victim and her family.  There was an interview with Jennifer's parents and with the police who had set up the scholarship fund.  There were countless magazine and newspaper articles printed.  

The Grand Jury was convened on Monday Nov. 6, 1995. The hearing was conducted, and the Grand Jury handed down the charges against Dusty, adding the phrase “with intent to defile” on to the abduction charge.  This was indeed strange since the sexual charges had been dropped.  The prosecuting attorneys realized that they had to add that charge, or the abduction charge would never stick.  Without associating Jennifer’s death with the felony of abduction, the prosecution knew that they could not get a conviction on first degree murder.  They knew that Dusty had not killed Jennifer, but if they could show that she was killed in the commission of a felony, then they could charge him if he was present when the crime was committed.  In order to charge Dusty with felony abduction, they had to provide a reason for Dusty to have abducted her.  Consequently, they added the intent to defile to the charge.  The proper charge would have been accessory after the fact, but that lessor charge wouldn’t do much for the political careers of the prosecuting attorneys.

The preliminary hearing was held in November.  It was discovered that Kristen Bishop received quite a bit of money for her information and she was one of the States star witnesses.  The prosecuting attorneys brought their theory into action by calling upon their witnesses, witnesses paid by the state.  The first witness was an assistant chief medical examiner, Leah L.E. Bush, FOR THE COMMONWEALTH OF VIRGINIA in the TIDEWATER DISTRICT.  There was some discussion about her report and one of the prosecuting attorneys made this statement, “THE AUTOPSY REPORT HAS BEEN PROVIDED TO COUNSEL AS A COURTESY.”  Ms. Bush was the person who conducted the autopsy.  She basically stated that the victim had died by manual strangulation but there was no way to prove it, everything was circumstantial.  She summarized by saying there were no penetrating injuries or significant blunt force trauma identified, and cause of death was undetermined.  After she was excused the prosecuting attorneys dropped the two sex charges against Dusty, leaving murder and abduction.  They did not drop the charges against Billy Brown, he still was charged with attempted rape.  There were other witnesses brought forward including the Forensic Pathologist who was identified as the Forensic Service Supervisor for the city of Virginia Beach Police Department.  She along with the other witnesses was there to support the prosecution’s theories.  

During the preliminary hearing Judge Cochran was discussing what the charges were going to be against Dusty.  Steve Mahan asked her if it would be sufficient to implicate Mr. Turner (Dusty) as an accessory or as a principal.  Judge Cochran said, “That’s what I’m asking.”  Mr. Mahan then referred the court to, he said, a number of cases that are extant regarding accessories.  When Judge Cochran told him to bring them forward, his reply was that he did not have copies with him but he could give her the citations and summarize for her what they are.  Judge Cochran again asked to see them.  Mr. Mahan said he was sorry he didn’t bring them and then Judge Cohran asked if they were from the code, she said she would look them up.  She never did and that never became an issue again.

On Jan. 30, 1996 Dusty’s mother, Linda Summitt was at the courthouse in Virginia Beach, at a hearing for the motions for discovery.  One of the prosecuting attorneys, Albert Alberi, was there along with Buster O’Brien, from the office of Brydges, Mahan & O’Brien.  When Linda Summitt stepped out of the courtroom to go to the ladies room she overheard a comment made by Alberi to O’Brien.  He said that it was going to be too late for forensics to analyze the front seat.  However back in the courtroom Alberi stated to the judge that everything was taking so long because there was outstanding evidence that hadn’t come back yet.  He continued to say that the defendant had expressed confidence that these tests might exonerate him.  Linda thought that it was confusing after just hearing him say it was too late and now he was making this statement to the judge.  Although she was worried she assumed that the defense attorneys would order, and probably already had ordered testing by their own pathologist. 

Billy Brown’s trial was set to start in May 1996.  Due to the sexual content of the case the presiding Judge, Judge Shockley, had already determined that there would be no cameras in the courtroom.  The jury selection started on May 20^th and lasted for four days.  As Billy's transcripts reflects, most of the potential jurors stated they felt he was guilty and deserved the maximum sentence, some even stating he deserved the death penalty.  Although the trial lasted a few days and Billy Brown’s attorney tried his best to make it look like Dusty was the perpetrator, and his client was just an innocent bystander, the jury didn’t take long to deliberate and to return with a verdict of guilty.  In June 1996 Billy Joe Brown was convicted and sentenced to 72 years in prison (no parole) and fined $63,000.

It had only been a little over two months since Brown’s trial and the media attention was still at a frenzied pace.  There were still constant biased articles in the newspapers and reference to the case on TV.  The presiding judge over Dusty's case, Judge John Moore, had already made the statement that this case had drawn a lot of media attention and that he would not hesitate to move the trial if the pre-trial publicity was too extensive.  However there was to be no change of venue.  Although Dusty’s family continued to be adamant about the request, the attorneys never asked for a change of venue.  When questioned about it Mr. Brydges would give his reasons for not filing a change.  He always said he knew Billy Brown’s attorney had filed for a change and had not gotten one.   Mr. Brydges also let it be known that the way he felt about his reputation was the determining factor.  He would in fact say that he was well known and liked in this community, and that he knew all the judges and was familiar with the courthouse.  He felt his reputation and Dusty’s "good looks" would be enough to convince the jurors.

On August 20^th there was a hearing held to discuss cameras in the courtroom.   The argument for media coverage was that this was an important case to the community, that they had been touched personally by it.  Judge Moore stated that in Billy Brown's case Judge Shockley was correct in excluding media coverage because the charges involved sexual offenses.  However he felt this case was different.  Although Dusty’s attorneys did argue against it, and it was not allowed at Brown’s trial, the Commonwealth’s attorneys were all for it and Judge Moore allowed it, starting during jury selection. (Pp. 11-14 Opening Procedures D.T. transcripts)    (One of Dusty's charges was abduction with intent to defile, which anybody knows has a sexual conation to it.  And at Dusty's trial, sexual offenses were one of the main subjects referred to by the Commonwealth's attorneys.)   It seemed that the Judge’s motive for asking to be the presiding judge was for the media attention and his own gain of popularity.

The jury selection began.  Dusty and his family were appalled to see the two police officers that had headed up the scholarship fund, sitting in full uniform, near the front of the courtroom.  It was as if their mere presence was a reminder to the community to do their civic duty, to make sure that they avenge this girl’s death.  As each panel of potential jurors were brought out and questioned, it seemed inevitable that the case would be moved to a new jurisdiction.  Most of them had heard, read, and discussed the case.  They knew of Brown’s trial and also of the scholarship fund in Jennifer's name.  It was the same with all the panels brought in.  Only 3 people out of the 53 interviewed stated that they had no former knowledge of the case. 

As the panels were questioned on an individual basis, it was shocking to learn that most of them said they had already formed an opinion of guilt based on what they had read or heard.   Some referred to Navy SEALs and their “type,” indicating they were all bad.  One said he knew about Coons, SEALs and others like them, and knew what they were capable of.  One lady said she wanted to slap Dusty and go over and hug the victim’s mother.  Another lady (pp. 69-83 D. Turner's trial transcripts) knew how many years the codefendant had received.  When asked if she could sat aside her opinions, she gave the answer of  "Yes, I think I can."  She was one of the jurors.  One man said his ex-wife was a victim of crime.  He also said, “the papers seem to form an opinion.  When a guilty verdict comes out you tend to believe it.  So I guess I have to say if the newspapers come out and say he is guilty I tend to believe it.”  Unbelievably, this man was one of the jurors who helped convict Dusty.  (All of this information can be read in the jury selection of Dusty's trial transcripts.)

As the trial proceeded it was easy to see that it was going to be one sided.  The judge was favorable to the Commonwealth’s attorneys, allowing them almost everything they asked and giving them the advantage.  They seemed to have it all right down to modern equipment including a laser pointer.  They were well prepared, they took this particular case to a conference where they asked and received help from other prosecutors all around the country.  Brydges and Mahan were not well prepared.  They had no modern equipment; such as computers, projectors, diagrams, slides etc.  The only thing they had was a picture of Billy Brown. Dick Brydges made the statement "I don't intend to use anything in the way of graphics or exhibits."  Mr. Mahan must have felt that they were not adequately prepared when after Brydges statement, Mahan admitted (On page 641 of D. Turner’s transcripts), “It doesn’t surprise the court that we have “old school” and new technology.”

Billy Brown had given the arresting detectives three different stories.  Story one was that he didn't know anything and he had nothing to do with Jennifer's disappearance.   Story two he said he we went out with Dusty and they both had Jennifer in the car and he was trying to undress her and Dusty choked her to death.  Story three he said he had come out to the car and found Dusty in the back seat with Jennifer trying to take her clothes off and that Dusty had already killed her.  It was story # 2 that the Commonwealth’s attorneys used to build their whole theory. They argued that it was because of this plan to commit sexual offenses, that the victim was killed.

 The Commonwealth’s attorneys were allowed to have a mock up of Dusty’s car, at both trials, which consisted of nothing but a bottom frame and three seats.  There was no gearshift, console, parking brake lever, steering wheel or exterior of the car, which would show the actual size.  The way it was depicted there would be room in the car for any conceivable thing to happen.  It was with this and a distorted photograph of the car that they were depicting the scene of the crime.  In reality the car was a 1991Geo Storm.  They presented one theory at Brown’s trial and a different one at Dusty’s trial.  This theory could have been easily disproved through forensic reports, by showing that the victim was never in the backseat, as all of Brown’s stories as well as his diagram indicated.  There was definitely no room to place her in the middle with Billy Brown who at the time weighed over 220 pounds and was 6‘ 4” tall, and Dusty whom at the time weighed 212 and was 6’ 3’’ tall, on either side of her.  The middle consisted of a gearshift, a brake lever and a console.   Ms. Charlotte Lowe, the state’s witness, while discussing Dusty’s car (Billy Brown’s trial transcripts, May 28 pp286) glanced at the mock up and stated, “It is kind of misleading the way it is.  Because on the vehicle there is a place for the emergency break to be pulled up.  There’s also a place for a console and the gearshift column.” 

At Dusty’s trial the two prosecutors, along with one of the state’s witnesses sat in the mock up, pretending they were Billy Brown in the back, and Dusty and Jennifer in the front.  They demonstrated how easy it would have been for Dusty to stop Brown or to throw a punch at him.  Their theory could have been easily disproved if the defense had been allowed to show the actual size of the car with everything intact.  As Alberi, the prosecuting attorney, himself, said, “It appears to be three car seats on a plywood foundation.”  When Dick Brydges and Steve Mahan objected to the mock up and suggested that the jury be allowed to see the whole car, Judge Moore stated, “it would take a pretty extraordinary situation for me to take the jury anywhere out of this courtroom.”  Judge Moore repeatedly stated to the defense if they wanted to show the jury the car so bad that they could bring it into the courtroom and "flop" it down or put it together piece by piece, he didn’t care.  The defense attorneys stated that it would be impossible considering the trial was on the 6^th floor.   (This discussion can be found in D.Turners’s trial transcripts, pp. 1441-1450)

There were many inconsistent statements made by the prosecutors and witnesses from the preliminary hearing, at Billy Brown’s trial and at Dusty’s trial.  The Commonwealth’s attorneys at Billy Brown’s trial, argued that Jennifer was killed in the back seat, but at Dusty’s trial they argued that she was killed in the front seat.  However at Dusty’s trial the Commonwealth conceded that she was killed in the front seat.  (They never actually stated that Dusty was the person who killed her.)  There were also statements at one trial that weren’t allowed at the other and there were statements made from Brown’s trial that should have been included at Dusty’s trial. 

During Billy's trial when Mr. Alberi questioned Kristen Bishop he asked her how Billy communicated with her the fact that he wanted to go home or leave.  Kristen’s response was; “He told me he wanted to go, and he said, ‘I haven’t had sex in eight weeks.’  I told him that I wasn’t going to help him, and he got a little angry with me.”  She also mentioned the fact that he yelled at her, as she was walking across the parking lot, “Don’t follow me, things could happen.”  Those statements that Kristen made about Billy Brown were never even mentioned at Dusty’s trial.  They could have certainly helped the Jurors see what Brown’s demeanor was that night, and how he would have had a bad disposition as he approached the car where Dusty and Jennifer sat listening to music and waiting on Jennifer’s friends. 

Michelle McCammon at Billy's trial was very adamant about the time.  (Page 195 B.B. trial transcripts),“ My clock always runs five minutes fast.  It said it was two o’clock.  From that I know it was 1:55 when we were on the beach.  We were worried about being late and Jennifer would get mad, so I remembered very well the time.”  Alberi then said, “What was going on in the parking lot when you arrived at 1:55?     (Alberi had just changed her words, so that the time agreed with Andria’s.  He wanted to keep it consistent so that it looked like the girls were not late in getting back to pick Jennifer up.)

Michelle McCammon at Dusty’s trial, (page 767 D.T. trial transcripts).  “Well, when I got in the car and started it, my clock read about 1:45.  My car clock has often run about four minutes fast; so I knew that we were going to be, you know just a little bit late if any."

Page 769 Dustin Turner trial transcripts:

Alberi:        “Miss McCammon did you check the car clock as you approached the Bayou to see how you were doing on time?”

Michelle:     “Yes”

Alberi:        “What time did the clock say?”

Michelle:     “It said 1:55.”

Alberi:        Which in real world time would have been 1:51 because it was four minutes fast.”

Mr. Mahan questioned her extensively about her clock, but he never brought up her inconsistent statements from Brown’s trail.

During the preliminary hearing there was much testimony from Andria Burdette.  She was a witness for the Commonwealth.  She didn’t really have anything bad to say about Dusty.  So she just made the statements that he was not polite and that he wouldn’t look at her and her friend.  She stated he wasn’t very nice and wouldn’t talk to her and her friend Michelle.  She said, “We thought he was rude, we just didn’t like him.” 

However at Brown’s trial Andria didn’t really mention that she thought Dusty was rude, she just said, (page 299 B.B. transcripts) “I didn’t get along with him that evening.”  At Dusty’s trial she said, “He was blatantly rude.”  She said he was rude about four or five times (page732 D.T. transcripts). 

There were also inconsistent statements about the car door that were changed from the preliminary hearing, to the newspaper, to Brown’s trial and then Dusty’s trial.  At the preliminary hearing Andria made this statement, “So as soon as the words okay were out of my mouth, he grabbed the door handle and was like opening up the door before I had even finished saying okay.  It was just so fast we made a comment.”  When she was questioned by Andrew Sacks, Billy's attorney,  Sacks made this comment, “Did he open the door with such force and suddenness that it startled or surprised you? 

The next day November 3, 1995 the comment made in The Virginia Pilot was “Turner abruptly opened the door to let Evans out, startling the other two girls.”  At Dusty’s trial Andria said, “The door behind me opened really fast and really loud.  It really scared me.  Dustin Turner had just like pulled open the door with surprising force.  (The defense attorneys questioned none of those comments, nor did they try in any way to attack or discredit the Commonwealth’s witnesses.) 

(B.B. trial, page 298) Andrew Sacks asked Andria about a comment Dusty made, she answered, and “I’m going to call her as soon as you get back home.”  Mr. Sacks said, “Now when he said that, did you note the tone of voice that he used?  Andria replied “Yes”.  Mr. Sacks:  Would you describe it as belligerent?  Andria said, “Yes, it was.” (D.T. trial, page 715) Andria made this statement, “he just looked down at me and with a horribly belligerent tone and said, I’m going to call her as soon as you get home.”  Brydges should have been able to point out that Andria's statement (page 710 D.T. transcripts) “Dusty said he wanted to come back to the house,” was more proof that Dusty certainly wasn’t thinking about a sexual encounter with Brown, since he were considering going to the house later to see Jennifer. 

Another incident that occurred with Andria and Michelle that seemed fabricated had to do with the keys.  There seemed to be a big deal made out of the fact that Jennifer was carrying the keys, because she was the only one who had pockets.  Andria and Michelle both made statements referring to this at the preliminary hearing, Brown’s trial and at Dusty’s trial.  Yet, Andria made the statement that when they, Andria & Michelle, were ready to go they dangled the keys in front of Jennifer.  It wasn’t until Brown’s trial that the Prosecutors ask Michelle about what she found in her car and she stated that she found the house key in the back floor, indicating that Jennifer had put it there on the floor.  Later at Dusty’s trial Andria mentioned that she dangled the keys, and then she quickly added, “I must have taken them from Jennifer.”  The Commonwealth made a big issue out of the keys and even mentioned the keys in their affidavit when dismissing the Appeals.

The Commonwealth finished with their witnesses after just a little more than two days on Friday morning August 30, right before Labor Day weekend.  The prosecutors had apparently told Mr. Mahan the night before they would be resting their case.  However, Mr. Mahan and Mr. Brydges were unprepared and had no witnesses ready to take the stand.  This is documented on pages 1212 –1224 DT trial transcripts.  Judge Moore became very irate telling Mr. Brydges that he was not prepared.  He told the defense that they had not subpoenaed anyone. The defense attorneys asked for a recess until Monday, stating they had witnesses coming from out of state.  Mr. Humphreys, pretending to be serious, offered to let them use some of their witnesses.  Finally after a recess, the defense had their first witness ready and the trial resumed 

At Billy Brown's trial Todd Ehrlich was not allowed to testify about a situation that had happened a year before because Judge Shockley stated it was irrelevant.   Steve Mahan tried to explain to Judge Moore that that was excluded  (D.T. transcripts page 647).  Judge Moore said he would go into it later when it came up, but not allow it at opening statements.  When it came up later (D.T. transcript pp. 903-922) and the term “tag team sex” was used, Mr. Mahan tried to get them to realize that that terminology was actually invented by the prosecuting attorneys.  However, Mr. Mahan did not point out where those statements were actually made at Brown’s trial.  (B.B. transcripts page 188 invention of the words tag team sex by prosecutors) 

Todd Ehrlich testified at Dusty’s trial, that Dusty was hitting on a girl in Fredricksburg VA in the hopes of having three-way sex, with himself, the girl and Brown.  He said this occurred a week before the murder.  When Alberri asked him how he knew about the time, he had an answer ready.  He replied at the end of the week, the week before the murder took place, it was around June 12.  (DT transcripts page 905)  However at Brown’s trial he had testified that he couldn’t remember the date.  He also said Dusty was talking to two or three girls, and he could not hear their conversation.  Mahan should have pointed out the discrepancy with his prior testimony. 

Dick Brydges and Steve Mahan knew from the very beginning that Dusty was referring to urine on the front seat when he made the statement to Detective Orr that there was something in the car that would help convict Brown.  They would have never even mentioned it, accept that Dusty's Mother kept asking Mr. Brydges about it at Dusty’s trial.  When Detective Orr was given his testimony he again mentioned that Dusty had told him there was something in the car that might exonerate him.  Mr. Brydges while questioning Detective Orr asked  “Didn’t mention anything to you about finding urine in the front seat or anything like that?"  Orr said, “No.”  He also said that he (Orr) advised the people responsible for processing the car that there was some specific evidence to look for.  This conversation also continued on into the testimony of Charlotte Lowe forensic unit supervisor for the City of Virginia Beach Police Department.  Prosecuting Attorney, Alberi, was questioning her.  He asked her what she would have done if it had been pointed out that there might be a urine stain on the front seat.  She answered she would have collected the surface the urine was on, she continued stating that urine has no DNA type information.  It would however be information that occurred.  (This is all documented in D.T. trial transcript pp. 1114-1115.)  Her statement at Billy Brown’s trial was that, “only the back seats were sent to the state laboratory for examination by the serologist.”  She also stated that more samples were taken from the rear than the front because the rear is a larger area.  This is documented in B.B. trial transcripts page 286.  Steve Mahan also cross-examined C. L. Lowe about the stains and her answer to him was that urine does not fluoresce.  (Pp.1127 D.T.T)  Later Humphreys, at Dusty’s trial made the statement that this was the first he had ever heard about the urine on the seat. 

There was a lot of testimony given by Dr. Leah L.E. Bush about types of strangulation, and how long they would take to bring on death.  She admitted that there could be a sudden compression of the spinal cord that could cause death without evidence of a fracture.  (D.T trial transcripts pp. 1160-1181)  Then at redirect questioning she answered the prosecuting attorneys questions in a way that made it look like there was strangulation to the point of unconsciousness and back again. Although the defense had Doctor Foer, who is a neurological surgeon, testify on how instantly death can occur and talk about the techniques that could be used, that would substantiate Dusty’s story, Mr. Humphreys kept making it a point that Dr. Foer wouldn’t want to dispute Dr. Bush's word.  Dr. Foer agreed. (PP. 1268-1277 D. Turner's transcripts)  This again is all part of the Prosecutions need to make it look like she was unconscious when she was transported so that the charge of abduction would stick.  If the commonwealth conceded that the murder took place in the parking lot that would have exonerated Dusty of both charges.  If they had said it took place at the location of her body then it would have changed the venue of the crime.  Their theory had to be that it happened at an unknown place within the Virginia Beach jurisdiction in order to get the abduction charge to stick. These were more reasons for the defense to have their own Forensic Pathologist.

The defense attorneys did everything they could to make sure no one was offended, therefore not using key witnesses, or allowing demonstrations that could have been helpful.   They knew about events and actions of Billy Brown, how he had tried to violate the victim’s corpse.  They knew in detail what had happened to Jennifer’s clothing.  Steve Mahan knew and understood it, but he said Mr. Brydges would never allow that to be presented. Linda Summitt spoke to Mr. Brydges about it; his answer was we don’t want to make any callous or hurtful remarks about the sexual abuse of the victim or to do anything to offend the family.  Then he stated that Jennifer's family had already been through enough.  Once again they failed to introduce evidence that could have helped.  If Mr. Brydges had not been so “Old School” or old fashioned in his way of thinking, and would have allowed the demonstration they could have easily proved what Dusty claimed to have happened.  The prosecutors on the other hand, used vivid and graphic details to shock the jury and to justify and promote their theory. Their theory was that she was abducted for sexual purposes and they blatantly emphasized in detail, every gross thing they could, making big productions of their theories, leaving nothing to the imagination. 

Mr. Brydges was unprofessional in many ways, he was not prepared to present witnesses and the witness list was not accurate.  The name Heather Ireland should have been Heather Otto.  Although Linda Summitt, along with many other family members and friends had all made the long trip to be there for Dusty and to testify in his behalf, none were called on.  There would have been many more that would have gladly driven all those miles to testify to Dusty's character, had they only been asked. 

Mr. Brydges cited that the Commonwealth’s theory suggested that Dusty moved the body from parking lot of the Bayou to somewhere else, in which case there would be a venue problem.  However he never followed up on that.  There were so many statements made by the Commonwealth’s attorneys that should have been attacked and proven wrong.  For instance the prosecuting attorneys constantly referred to Dusty as being the one who knew where to go to take the victim.  However detective Orr, during his testimony, stated several times that Dusty couldn’t remember the name of the exit and he was unsure of the name or turn off.

The Commonwealth’s actual admissions should have been attacked and documentation should have been presented.  The Commonwealth admits in many different places that Brown is the one who killed Jennifer Evans, this can be found in several places; detectives reports, Brown’s trial, Dusty’s trial (page 1199-1200 D.T. transcripts) the media; including many newspaper articles, and taped interviews.  The techniques and gimmicks that the prosecuting attorneys used should have been attacked.  If Brydges had pointed out all the loopholes and inconsistencies it would have put doubt in the jurors minds.  The prosecutors showed Dusty as being callous because of the apartment that Dusty was going to rent with Brown.  Dusty called his mother and told her he didn’t want to rent the apartment.  Mr. Mahan had Linda’s phone bills he could have proven Dusty called her.  The prosecutors showed Dusty as being insensitive, rude and a liar through Andria and Michelle’s statements, He wouldn’t talk to us, he wouldn’t tell me what time it was, he was rude and we didn’t like him. 

In Brydges’ closing statement’s he should have included what Detective Orr had said about the statements that Dusty gave, and then elaborated on it. He could have at least put some doubt in the jury’s mind.  Orr said at the preliminary hearing, “Dusty stated that Brown had killed Evans when all three of them were seated in his (Dusty’s) vehicle in the parking lot of the Radisson Hotel.  It happened so fast, I don’t know why the hell he killed her.” Brydges closing statements should have been able to instill a reasonable doubt from those comments.  He could have explained that from those statements of Dusty’s shows proof that Dusty was telling the truth, because, there is no way Dusty could have known that he was going to be charged with anything.  And even if he did, he wouldn’t have known about the types of charges.  He wouldn’t have been able to think that far ahead.  So he couldn’t have sat there and thought; “Now let me see, they are probably going to charge me with abduction, so I better say she died in the car, in the parking lot.”  The prosecuting attorneys knew that she died in the car in the parking lot and they have made more than one statement indicating Brown as the killer. 

Mr. Humphrys and Mr. Alberi, along with Judge Moore, confused Billy and Dusty.  They confused in their own minds the evidence that the jury heard with evidence they didn’t hear (example page 895 DT transcripts.)  With the huge amount of evidence in the news media, particularly in the print media that was not supposed to be heard or read by the jury their references were prejudicial.  Therefore a mistrial should have been requested by the defense.

The Commonwealth did not prove beyond a reasonable doubt to the jury that any of Brown’s stories actually happened and Brown did not testify at Dusty’s trial.  Therefore they did not prove any of their theories were true.  The Commonwealth believed that if you offended the jury enough with sex and lies that the jury would convict Dusty, even though the evidence didn’t prove what he was charged with.  The prosecution used things to upset the jury, ways to get to their emotions, to get them to convict Dusty, they never provided hard proof.  This should have been pointed out by the defense attorneys along with the fact that if the evidence fails to prove to the jury beyond a reasonable doubt that there was a plan or intent it was their duty and obligation to acquit the defendant of those charges.

Brydges should have shown that the Commonwealth ignored evidence and their own witnesses.  From Orr’s statements to Dusty leading the detectives to the body, to the statements that Dusty made about his car.  Kristen Bishop, who explained that Dustin asked her to give Brown a ride home.  Why would Dusty be trying to get rid of Brown if he were planning on a three way sexual encounter?  Why would he wait with Jennifer right up to the last few minutes for her companions?  Why not leave with her and Brown immediately after the girls left?  Why would he plan on calling Jennifer later, or going back to the house with the girls if he were going to have a threesome?  Why not have a three some the night before when Brown had a girl and Dan Shroeder got a girl?  Why not try to get one going with Kristen?  After all Brown had known her for some time.  The Commonwealth stated that Dusty was going to have her (Jennifer) one way or the other.  However their witnesses, Michelle and Andria, pointed out that Jennifer liked Dusty and that Jennifer was the one actually that was hitting on or chasing after Dusty.  The defense should have pointed this fact out.  And since they were relying on Dusty’s good looks maybe they should have pointed out the fact that he did not have to rape women for sex.  The timeline was not that tight according to the Commonwealth’s witnesses; nobody was wearing a watch.  And as pointed out before, Michelle changed her story about the time, to bolster the Prosecution’s case. 

There was no evidence of sex, defiling, or abuse.  The Commonwealth, themselves, dropped the attempted rape and other sexual charges against Dusty. No forensic reports revealed anything that had anything to do with abduction, sex, or murder.  There was nothing but circumstantial evidence to support the prosecution’s theory.  These are all things that should have been brought out by defense counsel, which would have led the fact finders (Jurors), to more than a reasonable doubt.

There was no justice for Dusty, although the Sixth Amendment states that a defendant has the right to a fair trial and that he or she is innocent until proven guilty.  There was no fair trial for Dusty.  The judge himself, during the trial, announced that he felt the defendant was guilty (page 1228 D. T. trial transcripts).   He did try to remedy his mistake, by stating it didn’t matter what he felt, it was the jury who would make the ultimate decision.  This was printed the very next day in the August 31, 1996 issue of the Richmond Times Dispatch.  The jury was not sequestered and it was a long weekend, the Labor Day Holiday. This alone should have been basis for a mistrial.

When instructions to the jury was being given, Brydges relating his instructions didn’t seem to have the model instructions in front of him.  When he objected to specific instructions he failed to have an alternative to present to the court.  During closing statements after instructions were read, Brydges did not appeal to the court on the penalty aspect?  It was confusing; jurors do not deal with these concepts.  They didn’t understand what the terminology meant for concurrent and consecutive, they couldn’t understand the common sense use of it.  The judge either would not or could not give them the meanings when they asked.   

There was also one other reason for a new trial.  The day of Dusty’s sentencing.  A young man who recognized Dusty’s mother from the media approached her in the courtyard.  He said, “You’re Dusty Turner’s mother.”  He said he couldn’t believe that Dusty was convicted, because he knew that Dusty did not kill the girl.  He told her his name was Jude Franko and said he had been in a cell with Brown (he did not know Dusty and had never met or talked to him).  Jude said that Billy Brown told him that he (Brown) was the one who killed Jennifer.  Brown told him the reason he told authorities that Dusty did it was because he was getting even with Dusty, because Dusty had ratted on him.  When Dusty's mother, Linda, asked him why he had not told this to the authorities, his answer was “I can’t believe this happened I thought Dusty would be acquitted.”  She asked him if he would be willing to help, he said yes.  She wrote his name and phone number down and immediately called Dick Brydges.  She knew they could file a motion for new evidence and hopefully get a new trial.  However Dick laughed and said, “we don’t want to use him, he’s just a jailbird.”  She later went to his office and gave him the name and number and asked him to at least try filing it, he didn’t and later when she asked him about it he said he had lost the name and number.

“This town has already hung both of these boys.” That was a statement made by Dick Brydges the first time Dusty’s parents ever met him.  Virginia Beach, although it does not subsist on tourism, definitely depends on it.  The area also depends on the military, especially the Navy.  Jennifer Evans was a tourist from Georgia.  Dustin Turner was a Navy SEAL.  These two factors alone should have been reason enough for Dick Brydges to at least consider trying to get a change of venue.  

There were other extenuating factors; the two detectives that were involved were motivated due to fame and job recognition.  They had originally told Dusty and Jeffery O’konek, Dusty’s superior officer, that they needed Dusty’s help and that he was not going to be arrested.  When Linda originally talked to Mr. O’konek he and another of Dusty’s superior officers, Commander Toohey, they both told her that Dusty was not going to be arrested.  The detectives had told them they had their suspect and only needed Dusty’s testimony to help arrest Billy Brown.  Dick Brydges and Steve Mahan knew that she had talked to O’Konek and the other officers; and they could have proven this, by using her phone bills as evidence.  Linda had highlighted all the phone calls made to Dusty's Commanding Officers, yet they did not use her to testify.    

The defense attorneys had no character witnesses with the exception of Dusty himself.  There was one other witness, Anitra Branyan who had been acquainted with Billy Brown and Dusty.  The commonwealth’s attorneys had questioned her before the trial and were trying to get her to say that Brown and Dusty had wanted her to have group sex.  She said that was not true.   When she was called to testify, it was her first time, unlike the prosecution's witnesses who had testified at the preliminary hearing and at Brown's trial.  She was unrehearsed and nervous.  She was questioned about the newspapers found in Dusty's car.  The prosecution's attorney's had made s real big deal out of the newspapers, trying to show that Dusty was watching and laughing at the media's attempts.  She explained that she was the one that had gotten them and given them to Brown at his request, that Dusty knew nothing about the calls and meetings she had with Brown.  When Steve Mahan questioned her, he did ask her about the interview with Mr. Humphreys but did not question her specifically if Humphreys was trying to get her to say that Dusty and Brown had wanted to have a threesome with her.  Later when Steve Mahan was questioned about it, by Linda he said, “I could not lead her”.  Not only were the defense attorneys not well prepared, they didn’t present a convincing closing argument or try to give the jurors a reasonable doubt. 

The two Prosecuting Attorneys, Robert Humphreys and Al Alberi saw this case as an opportunity to take advantage of the media attention and advance their political careers. Although at the beginning they stated they would use Dusty’s testimony to help them convict Billy Brown, they decided to use this highly publicized case to further their own careers, and in fact they both have become judges.

Attorney James Broccoletti was hired in January of 1997 to handle the appeals.  He filed a brief in Circuit Court citing 5 errors. 

1.        The trial court erred in failing to strike the evidence and in finding that there was sufficient evidence beyond a reasonable doubt to convict Turner of abduction with intent to defile and first degree murder.

2.        The trial court erred in allowing into evidence testimony of Todd Ehrlich, which stated that previous to June 18, 1995, Turner and Brown had engaged in group sex, which the witness described as “tag-team sex”

(Ehrlich testified that Brown and Dusty had “discussed” group sex.  Not that he knew they did.  Ehrlich described the encounter as “tag-team sex”; he later conceded that he never heard Dusty use those words.  But the damage was done; from then on the prosecutors used that terminology as if it were something Dusty used and did frequently.)

3.         The trial court erred in admitting the testimony of Julio Fitzgibbons.  Fitzgibbons testified that Brown and Dusty were planning to engage in a “threesome” when that term was actually defined by the witness.

(During the beginning of the investigations we were told that Julio was the one who said that Dusty came to him and asked for a condom.  It was also in the newspaper that Dusty “asked” someone for a condom.  At the trial it was Kristen Bishop who said in her testimony that she told Dusty, if he were going to leave with Jennifer, he better wear a condom.  Julio’s testimony was about threesomes, he stated that Dusty told him he was going to have a threesome.  Which is quite contradictory of him getting Brown a ride home.  Fitzgibbons did not know Dusty or Brown and at the preliminary hearing he had to be shown a picture to identify them, even then he kept getting them mixed up.   Later, at Dusty’s trial, he conceded that he did not know Dusty or Brown.)

4.     The trial court erred in overruling Turner’s motion for a view of the automobile when it had previously allowed the Commonwealth to display part of the vehicle to the jury. 

(It was unfair for the Commonwealth to bring just the seats into the courtroom in a mock up demonstration and not allow the jurors to see the dimensions of the car and the relationship of the seats to the interior for themselves.  The entire car was parked in the municipal complex, the same location as the courthouse.  Inconvenience is never grounds to deny a view.)

5.     The trial court erred in failing to strike juror Bloomer for cause.

(Bloomer told about her knowledge of the case through publicity and she admitted that she knew Brown had received 72 or 73 years.  Brown’s trial, considering it had been so recent, would, more than likely, have had an impact on her decision-making.) 

In September 1997 the Appeal was denied.

The next step was to petition the Supreme Court of Virginia for ineffective counsel.  The Assistant Attorney General, Robert H. Anderson, III, reviewed the Writ and the affidavit filed by Brydges and Mahan.  He basically agreed with whatever Brydges & Mahan wrote and denied the petition on October 21^st, 1999.  Mrs. Summitt wrote a letter to him asking about his decision.  Mr. Anderson wrote that her son was not constitutionally entitled to a change of venue.  He also defended the trial counselor’s decision not to obtain forensic examiners making this statement, “neither he (defendant) nor his family provided money for any such undertaking.”  On several other issues he wrote, “Turner and his family agreed with defense counsel,” which was not true.  The most upsetting thing he wrote was on the issue of Jude Franko.  Mr. Anderson agreeing with the affidavit from Mahan & Brydges, that the family had failed to get an affidavit from Franko and that the defense counsel’s file did not include the slightest indication that Turner or anyone else informed them that Franko could testify to Brown’s admission of guilt.  He also said, “and counsel has no memory whatever of receiving such information from Turner or his family.” 

Upon reading that Linda Summitt knew that she was personally going to confront Mr. Brydges about his memory.  She had been working on getting back her son’s possessions and his car, which had been impounded since June 1995.  In November 99, after sending proof of ownership, titles, etc. Detective Orr finally helped to get the car released to friends in Virginia.  The hatchback had been removed the car had sat for four and a half years with out protection from the weather.  When they went to retrieve the seats and other things belonging to Dusty that was in the evidence room, they were told that Mr. Humphreys had ordered the seats to be destroyed.

Linda asked Detective Orr about tape recording a conversation.  She wanted to know if it were illegal if she taped a conversation between herself and someone else if that other person didn’t know.  Detective Orr told her that as long as one of the parties knew that they were being taped it was okay.   She bought a very small tape recorder and practiced using it while it was concealed, it worked perfectly.  After finding out that her son’s briefcase was still at Dick Brydges office she had a great excuse to go there.  She turned on the tape recorder at the door and went into the office.  She told the secretary that she wanted to talk to Mr. Brydges personally.  The secretary said to come back in an hour.  When Linda returned to the car and listened to the conversation, it was clear.  An hour later when she went back, her husband told her to turn the tape recorder on in the car; she did, then bent over to kiss him for luck.  She didn’t know until later, but when she kissed him she accidentally shut the recorder off. 

Dick Brydges was cordial to Linda.  She told him that she wanted to talk to him about some things that were bothering her.  She began with the affidavit that Steve Mahan wrote, against the Habeas Corpus.  She told Mr. Brydges that there were many things that Mr. Mahan wrote that were not true.  He asked, "such as what?"  Linda said, “for instance, like the change of venue, you know that I never changed my mind about that, I was always adamant that you file for a change, and you also know that Dusty left that up to me.”  Mr. Brydges said, “I know but we never figured, Linda, that we could get a change of venue because Billy Brown couldn’t, therefore we never filed for one.” Linda replied, “You could have at least tried.”

Linda then asked, “Did you realize that Steve wrote that you have no memory of Jude Franco?”  Dick replied, “My memory is quite clear and I remember distinctly the Jude Franco incident.”  She reminded him of the information that she had given him.  He said, “Yes I remember.”  She asked him why he didn’t try to file a motion then.  He said, “Linda the prosecutors had already conceded to the fact that Billy Brown was the one who killed the girl, and I didn’t see how this would help.”  Then he became defensive stating that in his entire career this was the very first time a Habeas Corpus had ever been filed against him, and he was hurt and upset with Mr. Broccoletti.  He said he had not spoken to Mr. Broccoletti since and that she should file a Habeas Corpus against Mr. Broccoletti.  When Linda left his office she was very excited, thinking that she had taped the conversation, however when she got to the car, she realized the recorder was off.  At that point Linda wrote down, from her recollection, every thing that had just transpired between her and Mr. Brydges.

Mr. Broccoletti then filed an Appeal to the Supreme Court of Virginia on the grounds that the trial court erred by dismissing appellant’s petition for writ of habeas corpus without an evidentiary hearing.  He was granted an oral argument at the Supreme Court in Richmond in May 2000.  The appeal was denied June 8, 2000.

On June 21^st Mr. Broccoletti sent an e-mail to Linda saying he was sorry.  He said, “Now that the state remedies are all exhausted, we are able to file a 28 U.S.C. 2254, a federal habeas corpus. The odds on that are even smaller than with the state court.  He (Dusty) has one year to file from the denial by the Virginia Supreme Court.  It is time that a new lawyer stepped into the case.  I would be glad to refer you to a lawyer in Richmond to file the federal suit if you so desire.  Please Advise.”  (James Broccoletti had just misinformed Linda, because the way the timeline is there actually were only a few weeks in which to file the federal habeas corpus.)

One of the attorneys whom Mr. Broccoletti had referred was Mr. Jerry Zerkin.  He was considered to be one of the most knowledgeable in the area of filing appeals and habeas corpuses.  He informed Linda that it was too late. He explained the timeline how the clock starts ticking after the sentencing, and then it stops while there is and appeal going on.   The timeline runs consecutively along with the state habeas corpus.  The rule that Mr. Zerkin had been referring to is called “Tolling” (meaning the clock does not run).  The law is hard to read and hard to understand, and was apparently changed in 1996.  Although attorneys should have the knowledge and certainly the duty to their clients, to keep up with these laws and know when the changes are made, many do not understand this law.  You would think that like an insurance representative or a doctor, they would be liable for misinforming their clients.  They’re not!!

“Equitable tolling” is available only if the applicant can show “clean hands” - that is, reasonable diligence in the investigation and presentation of his or her claims.  What are the circumstances where equitable tolling is available?  There are none!!!!!   Because what he showed is that mere excusable neglect, ignorance of the limitations, lack of training, lack of legal representation, or the fact of incarceration is not sufficient to justify equitable tolling.  Even a claim of actual innocence does not constitute an “extraordinary circumstance” warranting equitable tolling.

Linda had gotten the name of another attorney Mr. David Hargett from a friend.  He said he calculated and knew that the deadline was missed, however he thought he knew away around this.  Mr. Hargett knew of Dusty’s case and of the notoriety that went along with it.  After relating the story to him, in much detail, Mr. Hargett seemed not only interested, but also genuinely concerned for Dusty’s plight.  He cited other cases were similar to Dusty's, as far as missing the federal habeas deadline.  He explained in his words, how the two Habeas Deadlines, both state and federal work.  He also said that the federal clock starts to run again when the state post-conviction “or other collateral review” is completed. 

Mr. Hargett said that we had a good argument that “other collateral review” also contemplates appealing to the USSC (US Supreme Court) the decision of the Virginia Supreme Court dated June 3^rd.  He felt that by filing an appeal to the USSC, Dusty could accomplish two goals.  First, the USSC has the power to order an evidentiary hearing; he did say the chances are very slim.  Second, if the phrase “other collateral review” is held to include filing an appeal in the USSC appealing the dismissed habeas case, then Dusty will have approximately two months after the USSC renders a decision to file a federal habeas petition in the federal district court.  He then explained that both proceedings have many hurdles, but those were the only options available to Dusty at the time.

On November 15^th, 2000,we received the bad news from the United States Supreme Court.  The petition for a writ of certiorari was denied.  Mr. Hargett filed a petition in the federal district court, which was denied by the Assistant Attorney General Robert Anderson III, on the grounds that the deadline was missed.  And on March 13, 2001 Mr. Hargett filed a Memorandum in Opposition to Respondent's Motion to Dismiss. On June 4, 2001, there was a decision from the Magistrate Judge; he recommended that the habeas petition be dismissed as untimely.