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Univ. of South Carolina School of Law

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Friday, August 7, 2009

The Only Easy Day Was Yesterday: Former Navy SEAL Trainee First To Have Murder Conviction Erased By New Virginia Writ Of Actual Innocence Rule

The date was June 19, 1995. I had just graduated from First Colonial High School in Virginia Beach. Down the street from the school, Jennifer Evans, a 21 year-old premedical student from Georgia was being murdered outside a nightclub. Two friends and fellow Navy SEAL trainees, Billy Joe Brown and Dustin A. Turner, were eventually convicted of her murder. Years later, Brown converted to Christianity and admitted in a taped confession that he was Evans' sole killer, spontaneously choking her in a car parked outside a nightclub. That confession formed the basis for the Court of Appeals of Virginia, in Turner v. Commonwealth, 2009 WL 2369552 (Va.App. 2009), to grant Turner's petition for writ of actual innocence. Before 2004, however, Turner would have been out of luck.

Before 2004,

Virginia’s notorious 21-Day Rule prevented courts from reviewing newly discovered evidence of innocence, no matter how compelling, if the evidence came to light more than 21 days after conviction. Many experts considered it to be the most unfair and restrictive rule on evidence review in the nation. Only the Governor had the power to reverse a conviction or commute a sentence decision based on new evidence.  

Virginia eventually 

passed a new law creating a process by which courts could review biological evidence of innocence, opening the door to the use of new DNA testing techniques on old evidence. That law was at least partially the result of DNA testing of evidence in the case of Earl Washington, who was convicted of rape and murder. On death row when DNA tests concluded that he was not the killer, Washington was later released from prison by then Governor James Gilmore.

This law, however, would not have helped Turner because his evidence -- Brown's confession -- was non-biological, meaning that the 21-Day Rule still applied. This all changed in 2004, with the passage of what is now Code of Virginia Section 19.2-327.10, which provides that

Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony upon a plea of not guilty, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction may be filed by a petitioner. The writ shall lie to the court that entered the conviction; and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter.

Because this Section does not contain a time limit, Turner was able to present Brown's confession in support of his petition, and the Court of Appeals of Virginia granted that petitionin, in a split decision. This was only the second writ of actual innocence issued under the new Section, and the first time that such a writ erased a murder conviction. It is important to note, tough, that this isn't the classic "wrongful conviction case; the court found that while Turner was not guilty of murder, he was still guilty of being an accessory after the fact by helping Brown conceal Evans' body after the murder. A hearing has been set to determine Turner's punishment for that crime, a misdemeanor that has a maximum punishment of one year in jail. And the Commonwealth might also still appeal the appellate court's ruling.

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/08/va-dna-21-dayshttpwwwnytimescom20090805us05brfs-convictionso_brfhtmlhttpwwwwishtvcomdppnewscrimefmr_navy_.html

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Comments

And governer Kaine has granted a sort of pardon -- time served.

Posted by: Phil Cave | Aug 7, 2009 8:17:47 AM

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