Charles “Sonny” Burton is scheduled to face execution in Alabama after the state’s highest court authorized Gov. Kay Ivey to set an execution date and approve nitrogen gas, according to the Associated Press. Burton, 75, was convicted for his role as an accomplice in a 1991 robbery at an AutoZone in Talladega in which another man, Derrick DeBruce, shot and killed Doug Battle. Burton’s lawyers and others connected to the case are urging clemency, arguing that Burton did not pull the trigger and that the circumstances surrounding the death sentences raise fairness concerns.
The AP reported that Burton was one of six men involved in the Aug. 16, 1991 robbery, and that testimony placed him outside the store when DeBruce shot Battle. No one disputed that DeBruce was the person who killed Battle, but Burton’s death sentence was kept in place after appeals. DeBruce, who was also initially sentenced to death, was later resentenced to life imprisonment, leaving Burton as the only person facing execution.
The clemency push includes Burton’s attorney, Matt Schulz, who said the case “represents an extreme outlier” among death penalty cases. Schulz said the case was wrong to proceed after the state agreed to resentence the shooter to life without parole, and he urged Gov. Ivey to grant clemency. The AP also reported that jurors from Burton’s 1992 trial and Battle’s daughter have asked for mercy as well.
Among those urging clemency is Tori Battle, the victim’s daughter, who wrote to Ivey, according to the AP. She asked Ivey to “consider extending grace to Mr. Burton and granting him clemency,” and she wrote that her father Doug Battle “did not believe in revenge.” The Associated Press reported it was unable to reach her or other Battle family members for additional comment.
The AP said six of the eight living jurors from Burton’s 1992 trial do not object to commutation and that a clemency petition includes requests from three jurors who said they would not have recommended death if the shooter had received a lesser sentence. Priscilla Townsend, one of the jurors, told the AP in a telephone interview: “It’s absolutely not fair. You don’t execute someone who did not pull the trigger.” Townsend said she recommended death after an “extremely emotional trial,” but that she now believes the sentence does not fit Burton.
Alabama Attorney General Steve Marshall’s office opposed clemency, the AP reported, citing Burton’s conviction and the unanimity of the jury’s death penalty recommendation. A spokesperson for the office said Burton was convicted of capital murder in April 1992, and that the conviction and sentence have been upheld at every level.
The legal framework for executing an accomplice comes from decisions by the U.S. Supreme Court, the AP reported. Robin M. Maher, executive director of the Death Penalty Information Center, said the group has documented at least 22 cases in which the person executed participated in a felony during which a victim died at the hands of another participant. The AP reported that Maher said the court’s approach—dating to 1987—has produced “arbitrariness among the jurisdictions.”
Richard S. Jaffe, an attorney not involved in Burton’s case, told the AP that Alabama law requires prosecutors to show an accomplice had a “particularized intent to kill.” Burton’s lawyers have argued that intent was never established, the AP reported.
The AP also reported on clemency arguments from Burton’s family and described mitigation presented in sentencing documents. Burton grew up with an alcoholic father who frequently beat him, and his sister, Eddie Mae Ellison, told the AP that Burton became a protector for younger family members. Ellison said Burton “is not perfect, but he is not the person depicted by prosecutors,” and she said his health has been failing, including that he uses a wheelchair or walker in the outside area of his cell. “He did not lay a hand on the man,” Ellison said, and she asked, “Why do you feel it is necessary to take his life?”
The AP reported that clemency has been granted rarely in death-row cases, and said Ivey has granted clemency once. It also noted that Republican governors in other states have commuted death sentences for accomplices in murder cases, including Oklahoma Gov. Kevin Stitt, who commuted a death sentence in November. The AP reported that Ivey now faces competing appeals: the clemency petition urging mercy and the attorney general’s office opposing it as Burton’s case moves through the final stages before execution.