Mr. Burton has offered a public apology for his role in the robbery. He realizes it was terribly reckless, placed others at risk, and that, had he not participated, the robbery may not have occurred.  He does not expect others to feel sorry for him, and he knows he is partially responsible for what happened.  By his own description and admission to his legal team, when he was younger, he was (in his words) “kind of a thug.” However, he is not a murderer.  One of the State’s own witnesses testified that, when Sonny heard that DeBruce had shot someone, he asked DeBruce why he did so. DeBruce claimed the victim (Mr. Doug Battle) had a gun, and DeBruce was trying to protect LuJuan McCants, a sixteen-year-old who was the youngest co-defendant.  For his part, McCants, who had made a deal with the State for a lesser charge, testified that Mr. Burton shook his head, and said, “let’s get out of here,” while everyone else looked at DeBruce.

How not only a guilty verdict, but also a unanimous jury recommendation for death, came about appears to be the result of one due process failure after another.  During trial, the prosecutor made numerous untrue statements regarding Mr. Burton being “equally guilty” as DeBruce in the eyes of the law.  While that is true for the crime of robbery, and even the ensuing murder (all co-conspirators can be liable for the reasonably foreseeable outcomes of a crime), under Alabama law Mr. Burton, while liable for a murder charge, should not have qualified for capital murder unless the State could demonstrate he had a “particularized intent to kill.”  In an attempt to show this, McCants, the 16-year-old codefendant, testified that Mr. Burton said that if anyone caused any trouble, to “let him [Mr. Burton] take care of it.”  On redirect examination, the prosecutor injected his own testimony into the case via the leading question:  “[Y]ou said that back up at the car wash that [Mr. Burton] said y’all will hit Auto Zone.  If anyone had to get hurt, let him do it.” (emphasis added). 

Despite an immediate objection, which the trial judge improperly overruled, the cooperating teenage witness then testified, almost word-for-word as fed to him.  However, in a videotaped statement to police, when McCants was asked if Mr. Burton had instructed him or anyone else to shoot anyone if they were uncooperative, McCants answered “No, sir.”

Mr. Burton’s trial attorney did nothing to help clear up the confusion.  And, the trial court’s instructions were also confusing. The trial court’s flawed instruction on particularized intent read:

Now the following law of complicity would only apply relative to the intentional killing element of capital murder.  If you find that a murder of the intentional killing type of [the victim] was committed by some person or persons other than the Defendant, the Defendant is guilty of that intentional killing type of murder if, but only if, you find beyond a reasonable doubt either that the Defendant intentionally procured, induced, or caused the other person or persons to commit the crime or that the Defendant intentionally aided or abetted the other person or persons in the commission of the murder.

Because the reference to “the murder” came second, the instruction encouraged a misapplication of the proper standard.  The evidence at trial overwhelmingly went toward establishing the plan to commit the robbery.  A reasonable juror would have considered “the crime” to be referencing “the robbery,” given the way the instruction read.   

In a similar situation in Texas, on February 22, 2018, facing the prospect of a non-shooter being executed when the triggerman would not face the death penalty, Texas Governor Greg Abbott commuted the death sentence of Thomas Whitaker to life without the possibility of parole.[1] In so doing, Governor Abbott noted that a significant reason he granted the commutation was the fact that “Brashear [the co-defendant], who shot and killed the deceased, was sentenced to life, but [Whitaker], who conspired to kill his parents and brother, but did not actually shoot the gun that caused the murders, was sentenced to death.”

In another similar Texas case from 2007, then-Governor Rick Perry, who ultimately presided over more executions than any other governor in U.S. history, issued one of only three commutations during his tenure.  He commuted the sentence of death-row inmate Kenneth Foster, a non-shooter, even though the gunman Mauriceo Brown had been executed.[2] In this case, a strongly pro-death penalty governor of a state that has never shied from carrying out executions understood the injustice of executing the non-shooter, even where the shooter had been executed.  Mr. Burton’s situation is far more equitably unjust considering that the shooter’s death sentence was vacated.

In yet another case, the Governor of Virginia commuted Ivan Teleguz’s sentence of death to life without the possibility of parole, citing the fact that the more culpable defendant, who actually committed the killing, was sentenced to life without the possibility of parole, while Mr. Teleguz received a death sentence. This is further described in this press release “Governor McAuliffe Commutes Sentence of Ivan Teleguz to Life Imprisonment,” Office of the Governor, April 20, 2017 (https://governor.virginia.gov/newsroom/newsarticle?articleId=20103). In that case, Teleguz was vastly more culpable in the crime than was Mr. Burton, in that Teleguz hired the more culpable defendant to kill the victim, whereas Mr. Burton did not direct DeBruce to commit the murder, did not participate in it, and even did not witness it, as he was out of the building when the shooting took place. 

Moreover, in its Amicus brief to the United States Supreme Court in another case, Roper v. Simmons, the State of Alabama admitted that to allow a less culpable co-defendant to be punished with death, while reducing the sentences of two of his co-defendants to life imprisonment without parole, would be “nonsensical[].” [Br. of the States of Ala., Del., Ok., Tx, Ut. and Va. as Amici Curiae in Support of Petitioner at *10, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633), 2004 WL 865268, *10 (April 20, 2004) (“an arbitrary 18-year-old cut-off would result, nonsensically, in a constitutional rule permitting capital punishment for Grayson, who was 19 at the time, but not for Loggins and Duncan, both of whom were 17 but plainly are every bit as culpable - if not more so.”)].  When it suits them, the State admits openly the injustice of Mr. Burton’s case. Indeed, in initially opposing DeBruce’s appeal, the state admitted that, to have Mr. Burton remain on death row, while the triggerman, DeBruce, had his death sentence overturned and is now off of death row “creates an unusual and arguably unjust situation.” [State of Alabama’s Petition for Certiorari at 24, Dunn. v. DeBruce, 125 S. Ct. 2854 (2015) (No. 14-807) (emphasis added)].

Here we have a situation with layer-upon-layer of injustices, one the State itself has publicly admitted is “arguably unjust,” and one in which, in similar situations, even Texas Governors Greg Abbott and Rick Perry saw the injustice, and issued commutations of sentence.