Alabama governor grants clemency to death row inmate who was accomplice to murder, sparing him from execution this week

By Elise Hammond, CNN

(CNN) — The governor of Alabama has granted clemency to a man on death row for three decades, a rare move that spares the accomplice in a 1991 murder from execution on Thursday.

Gov. Kay Ivey, in announcing her commutation of Charles Burton’s death sentence, said she could not “proceed in good conscience” with the execution because he was not the shooter. She said his sentence will now be life in prison without parole.

“I believe it would be unjust for one participant in this crime to be executed while the participant who pulled the trigger was not,” Ivey said in a statement on Tuesday. “He will now receive the same punishment as the triggerman.”

After hearing of Ivey’s decision, Burton said in a statement through his lawyer: “Just saying thank you doesn’t seem like much. But it’s what I can give her. And I do thank her. Thank you, Governor.”

Lois Harris, Burton’s daughter, told CNN she feels like a weight was lifted off her shoulders.

“I’m thankful. I’m glad she made that decision because it was the right decision,” she said of Ivey, through tears.

During a recent phone call with Burton before the governor’s decision, topics of conversation were light: He reminisced about growing up in Alabama, chatted about how he enjoys writing letters and offered the wisdom he thinks the next generation needs to hear.

Burton, 75, known as “Sonny” to his family and friends, was on death row for the murder of Douglas Battle.

“I didn’t kill no one, true enough, but I made a mistake by being part of the crime,” Burton told CNN in an interview last week. “I made a mistake, and it seems like all my friends have forgave me. I hope that my friends will remember me and remember that I was a real friend, a good friend.”

In August 1991, Burton and five other men robbed an AutoZone store in Talladega. One of the men, Derrick DeBruce, shot and killed Battle. Though he was not the shooter and was not in the store at the time of the killing, Burton was convicted of capital felony murder and sentenced to death by a jury in 1992.

DeBruce also received a death sentence, but it was reduced to life in prison without parole in 2014 after he successfully argued his trial lawyers were ineffective. He died in prison in 2020.

Clemency is rare

As the clock ticked toward his execution date, Burton’s advocates were calling for his execution to be halted, either by the US Supreme Court the governor, whom Burton had asked to grant him clemency and commute his sentence to life without parole.

The victim’s daughter – identified as Tori in Burton’s clemency petition – and some of the jurors in Burton’s case had backed his request for commutation. In a letter to Ivey, Tori wrote that her father “was strong, but he valued peace. He did not believe in revenge. And in that way, I am very much his daughter.”

“I do not see how this execution will contribute to my healing. And it disturbs me to think of a man who is now elderly, being executed, who if he had a better lawyer, probably never would have ended up on death row,” she wrote.

Cases like Burton’s — in which the non-shooter receives a death sentence under a felony murder statute — are “exceedingly rare,” according to Elizabeth Vartkessian, the executive director of nonprofit Advancing Real Change. It’s even more rare that they are executed, she said, because similar scenarios are not usually prosecuted as capital crimes.

Ivey has granted clemency only once during her term as governor, according to the Death Penalty Information Center. Clemency is rare: Less than half of one percent of people facing the death penalty have been granted clemency in Alabama, DPIC found.

“I firmly believe that the death penalty is just punishment for society’s most heinous offenders, as shown by the 25 executions I have presided over as governor. In order to ensure the continued viability of the death penalty, however, I also believe that a government’s most consequential action must be administered fairly and proportionately,” Ivey said.

On Monday, a spokesperson for Ivey told CNN the governor “carefully considers all the findings, facts and circumstances” around all executions but at this time “has no plans to grant clemency” to Burton.

“Over the past 33 years, his conviction and sentence has been reviewed at least nine times, and no court has found any reason to overturn the jury’s decision,” Gina Maiola, the spokesperson, said.

On Tuesday, Maiola reiterated that the governor reviews every case where an execution is ordered. Alabama Attorney General Steve Marshall’s office did not reply to CNN’s request for comment on Ivey’s decision.

Burton branded as robbery’s ‘ringleader’

In August 1991, Burton and five other men piled into two cars and drove to Talladega, according to court documents. They parked one vehicle at a nearby carwash and headed to their target: an AutoZone.

Inside, Burton purchased some items and went to the bathroom, court records say. Then, DeBruce pulled out his gun and told everyone in the store to get on the floor.

Burton took an employee at gunpoint to empty the store’s safe while the other men robbed customers in the store, according to court records.

Battle entered the store while the robbery was happening, court records say. He and DeBruce argued and DeBruce eventually struck Battle and shot him in the back, documents say.

Burton and then-teenager LuJuan McCants, who was also participating in the robbery, were already outside when they heard the gunshot, according to court filings. As the group fled, Burton asked DeBruce why he shot someone, Burton’s attorneys wrote in his clemency petition.

At trial, prosecutors argued Burton was “the ringleader” of the group. A unanimous jury recommended the death penalty after Burton was convicted of capital felony murder in 1992.

Jurors, victim’s daughter join calls for clemency

Burton has a host of health issues, including rheumatoid arthritis, which has limited his mobility to a wheelchair. He had a stroke recently, two of his children and his lawyer said. Burton also has “a diagnosis of delusional disorder, classified by the Department of Corrections as a ‘serious mental illness,’” according to his clemency petition.

His physical condition was one of the reasons why some of his children were pleading for mercy. Charles Burton Jr., Burton’s son, said he asked Ivey “to consider his health, consider his family — especially his grandkids — and the change that he made in his life while in prison, the progress that he made.”

“Give him a benefit of the doubt for once. He has never had a benefit of the doubt his whole life,” he said. “Show that you are compassionate and you understand that this man is no longer a criminal.”

Harris told CNN her father’s impending execution was “a hard pill to swallow.”

The family is not alone: Several jurors who decided Burton’s case and Battle’s daughter also wanted clemency.

Six of the eight living jurors were not opposed to Burton’s sentence being life in prison without parole instead — and three were outright calling for his sentence to be commuted, according to letters they wrote the governor included in Burton’s petition. They said they would not have voted for the death penalty if they knew the shooter would not have the same sentence, the letters say.

“I was very young when I served on that jury,” one juror, Priscilla Townsend, wrote. “But with the perspective I have gained throughout the years, it didn’t sit right with me, that someone who had not pulled the trigger was sentenced to be executed, and my heart went out to him.” She said she no longer agrees with her decision to sentence him to death.

Another juror, James Cottingim, said the disparity in sentencing between Burton and DeBruce pushed him to request commutation, adding he feels Burton’s death sentence is “no longer appropriate.”

“Having now learned that Mr. DeBruce was later resentenced to life without parole, it just seems very unjust that Mr. Burton should still be put to death,” he wrote.

The state opposed Burton’s appeal in 2018 after DeBruce was resentenced. The AG’s office argued it was not unconstitutional for Burton to be executed even though he did not pull the trigger.

There is “clear precedent,” the state argued, that just because a defendant is resentenced, does not mean their co-defendant is entitled to the same thing. “DeBruce was similarly resentenced due to a factor that had nothing to do with Burton or his culpability,” the state argued.

‘A quintessential case for clemency,’ attorney says

Burton’s lawyer, Matt Schulz, was asking the US Supreme Court to stay his execution so they could argue their latest appeal, which contended the inmate’s attorneys were forced by the trial court to call two of his co-defendants to testify against their “strategic judgment.”

The AG’s office opposed the appeal, arguing in part that those witnesses were called at Burton’s insistence. Marshall’s office called the appeal – so close to Burton’s execution date – “pure gamesmanship.”

But Schulz also believes the now-75-year-old should not have been found guilty in the first place.

Burton’s clemency petition argued that, for a defendant to be guilty of a capital offense, they had to have intended to kill someone. His attorneys did not feel the state proved Burton was an accomplice in the intentional killing of Battle.

“Even if Mr. Burton were the leader of the group, however, that is still not sufficient to find a particularized intent to kill,” Schulz wrote in the petition.

However, according to Alabama law, felony murder can be charged when the death occurs during another major crime, such as robbery, regardless of intent, according to the Felony Murder Reporting Project.

At least 22 people convicted under felony murder statutes in several states have been executed, despite not having direct involvement in someone’s death, according to the Death Penalty Information Center. Other states, including Texas and Florida, have similar felony murder or “law of parties” statutes and have executed non-shooters, according to DPIC.

The state defended the judgment, arguing Burton was armed and had told the other men that he would handle anything that went wrong. Despite an objection by the defense, McCants testified during the trial that Burton said, “We was going to go to Auto Zone, and if anybody needed to be hurt, let him do it.”

McCants later said in a signed declaration he did not believe Burton intended for someone to get hurt, and that his testimony was based on the advice of prosecutors, who he said had significant power over his future. McCants was 16 at the time of the robbery and took a plea deal to avoid a death sentence, court documents say.

Burton’s case is “truly a quintessential case for clemency,” Schulz told CNN, “and failure to grant clemency in this case would really represent an indelible stain of Alabama’s justice system.”

There are several things that could lead to convictions in capital felony murder cases, said Vartkessian, a mitigation specialist who has conducted research on capital jurors.

For example, prosecutors could argue that one person is responsible for the crime in one trial — and another co-defendant is also responsible in another trial, Vartkessian said. Alabama prosecutors argued DeBruce and Burton were each responsible for the death in their respective trials, court documents show.

“That culpability can be confusing for jurors, because they get a very narrow picture from the prosecution about the exact level of intent or involvement,” Vartkessian said.

‘Give me a chance,’ inmate asks

Burton was on death row for more than 30 years. In that time, he has taken responsibility for his role in the robbery and apologized to Battle’s family. He never expected the robbery would end in murder, he wrote to Battle’s family, “and I was terribly horrified when I learn that it did.”

“I sincerely apologize for taking so long to say this. I have struggle with this for years,” he wrote to the Battle family.

This accountability is a testament to Burton’s “high standard of character,” Imam Aswan Abdul-Addarr, Burton’s spiritual adviser, told CNN.

“For someone to take accountability for their sins. That’s the first step towards seeking forgiveness and redemption and repentance,” Abdul-Addarr said.

But Abdul-Addarr, like so many others, was hoping for this last-minute commutation to come through. “I think he’s paid his debt to society. Enough is enough,” he said.

Burton’s children were also hopeful but prepared for the worst. Over the weekend, family members visited Burton in prison, his lawyer said.

While his arthritis means he can’t write or get around well on his own anymore, Burton said, if he was granted clemency, he will make the most of the years he has left. He wants to start a program where he could reach young people, provide support and deter them from a life of crime.

“I’d like to be that voice, to talk to them and tell them my story, what happened to me,” Burton said. “I’d tell the governor: Give me a chance to do that.”

On Tuesday, the governor gave him a chance.

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