Clemency: The Only Remedy Left
The undisputed facts, the legal record, and why mercy is now the only way to correct an acknowledged injustice.
What is Clemency?
Clemency is the power of a governor to show mercy when the legal system can no longer correct an injustice. It does noterase a conviction. It does not suggest innocence. Instead, clemency recognizes that a sentence no longer serves justice and allows it to be reduced.
For Charles “Sonny” Burton, clemency would mean commuting his death sentence to life in prison without parole, the same sentence given to the man who actually committed the killing. With all court appeals exhausted, clemency is now the only remaining way to prevent an irreversible injustice.
Urge Governor Ivey to commute Sonny’s death sentence to life without parole.
Evidence of Intent, or the Lack of It
One of the State’s own witnesses testified that when Mr. Burton learned that DeBruce had shot someone, he asked DeBruce why he had done so. DeBruce claimed he believed the victim had a gun and that he was acting to protect LuJuan McCants, a sixteen-year-old co-defendant.
McCants himself, who testified pursuant to a deal with the State, confirmed that Mr. Burton did not encourage violence. He testified that Mr. Burton shook his head and said, “let’s get out of here,” while others looked at DeBruce. Critically, in a videotaped police interview, when McCants was asked whether Mr. Burton had instructed anyone to shoot if a customer was uncooperative, McCants answered plainly: “No, sir.”
A Verdict Shaped by Due Process Failures
How this case resulted not only in a guilty verdict, but in a unanimous jury recommendation for death, appears to be the product of multiple due process failures.
At trial, the prosecutor repeatedly made false and misleading statements suggesting that Mr. Burton was “equally guilty” as DeBruce for purposes of capital murder. While Alabama law permits accomplice liability for felony murder, it does notpermit a death sentence unless the State proves that the defendant possessed a “particularized intent to kill.”
The State attempted to meet this requirement through the testimony of McCants, who claimed that Mr. Burton said that if anyone caused trouble, to “let him take care of it.” On redirect examination, however, the prosecutor improperly injected his own testimony through a 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.”
Despite an immediate objection, which the trial court improperly overruled, the cooperating witness then repeated the language almost verbatim, language that did not appear in his prior statement to police.
Mr. Burton’s trial counsel failed to correct this distortion. Compounding the problem, the trial court delivered a flawed and confusing jury instruction on intent. The instruction suggested that if jurors found that “the crime” was committed by someone else, Mr. Burton could be guilty if he aided or abetted “the murder.” Given the structure of the instruction and the evidence presented, a reasonable juror could easily have understood “the crime” to mean the robbery, not the killing, thereby collapsing the distinction Alabama law requires between felony participation and intent to kill.
The Sentence Disparity
This case now stands as an extreme and admitted disparity.
Both Mr. Burton and Derrick DeBruce were initially sentenced to death. However, DeBruce’s conviction was later overturned on appeal. Rather than retry him, the State of Alabama agreed to resentence DeBruce, the actual shooter, to life imprisonment without parole. DeBruce later died in prison.
Mr. Burton, who did not kill, direct, or witness the shooting, remains under a sentence of death.
The State itself has acknowledged the injustice of this outcome. In opposing DeBruce’s appeal, Alabama admitted that allowing Mr. Burton to remain on death row while the triggerman’s death sentence was vacated “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).
Comparable Clemency Decisions
Governors across the political spectrum have recognized that executing a non-shooter while the more culpable defendant receives life imprisonment is unjust.
In Texas, Governor Greg Abbott commuted the death sentence of Thomas Whitaker in 2018, citing the fact that the shooter received life imprisonment while the non-shooter faced execution. Governor Abbott specifically noted the inequity of imposing death on a defendant who did not fire the fatal shot.
In another Texas case, Governor Rick Perry, one of the most pro-death-penalty governors in U.S. history, commuted the death sentence of Kenneth Foster, a non-shooter, even though the actual gunman had already been executed.
These decisions reflect a recognition that culpability matters, even in states that actively enforce capital punishment.
Similarly, in Virginia, Governor Terry McAuliffe commuted the death sentence of Ivan Teleguz to life without parole after noting that the more culpable defendant received a life sentence. Governor McAuliffe Commutes Sentence of Ivan Teleguz to Life Imprisonment, Office of the Governor, April 20, 2017.
Notably, Teleguz was more culpable than Mr. Burton, having hired another person to commit the killing, whereas Mr. Burton neither directed nor participated in the murder and was not present when it occurred.
The State’s Own Words
In an amicus brief to the United States Supreme Court, Alabama itself acknowledged that punishing a less culpable defendant more harshly than more culpable co-defendants is “nonsensical[].” Br. of the States of Ala., Del., Ok., Tx, Ut. and Va. as Amici Curiae in Support of Petitioner, Roper v. Simmons, 543 U.S. 551 (2005).
When it suits the State’s interests, Alabama has openly recognized the injustice of disproportionate punishment. Mr. Burton’s case presents exactly the kind of disparity the State has condemned.
Why Clemency is Warranted
This is not a case asking the courts to reopen old questions. Those avenues are closed. This is a case asking the Governor to exercise the constitutional power of clemency to correct an outcome the legal system can no longer remedy.
Layer upon layer of error, confusion, and disproportionality has left a non-shooter facing execution, while the man who pulled the trigger was removed from death row and sentenced to life. Even the State has acknowledged that this result is “arguably unjust.”
Clemency would not erase Mr. Burton’s conviction. It would not minimize the loss of Doug Battle’s life. It would simply bring Mr. Burton’s punishment into line with his actual culpability, and with fundamental principles of fairness. Urge Governor Ivey to grant clemency today.
Undisputed Facts
Mr. Burton did not kill anyone. The State of Alabama does not dispute that fact.
From the beginning of this case, the evidence has shown that Mr. Burton did not shoot Doug Battle, did not order the shooting, and did not witness it. In 1991, Mr. Burton and five others robbed an AutoZone store in Talladega, Alabama. As the robbery was concluding, and while Mr. Burton was already outside the store running the getaway car, a co-defendant, Derrick DeBruce, shot and killed Mr. Battle inside the store.
That tragic act took an innocent life. Mr. Burton has never denied his role in the robbery, nor has he minimized its recklessness or the risk it created. He has publicly apologized for his participation and has acknowledged that, had he not taken part, the robbery might never have occurred. He does not ask for sympathy, nor does he deny responsibility for the crime he committed. But he is not a murderer.