27 states allow executions of "non-triggermen" – people who participated in a felony that led to someone's death, even if they didn't carry out the killing themselves. Charles Burton is one of them.
By Ashoka Mukpo
July 11, 2019
When Charles Burton heard the judge read out his verdict in an Alabama courtroom on April 16, 1992, at first it didn’t seem real. He was going to die? How could that be?
Earlier in the day, the jury had listened to testimony about his difficult childhood, with his stepfather telling a story about watching Burton’s father beat him in the yard for calling him “dad.” Burton’s wife and sister had also taken the stand, pleading for his life and describing him as “caring” and a “good man.” None of it had made a dent, and one by one, each of the 12 jurors said they agreed with the verdict. Burton had been sentenced to death.
“It’s hard to explain,” he said over the phone in an interview, describing how he’d felt when he heard the jury’s decision. “I just couldn’t believe it.”
Today, Burton sits on death row at the Holman Correctional Facility in southern Alabama, just a few miles north of the Florida Panhandle. According to the Death Penalty Information Center, he’s one of 2,725 people on death row in prisons across the United States. But Burton’s situation is different than most. He’s one of a handful – nobody knows exactly how many – who are awaiting execution despite a glaring aspect of their conviction that distinguishes them from the others:
Charles Burton never killed anyone, nor did he arrange for anyone to die – a fact that even the state acknowledges.
Charles Burton’s path to death row began on the afternoon of August 16, 1991, when he and five other men pulled into the parking lot of an Auto Zone in Talladega, Alabama. It was a muggy day, and they’d been driving around in the blue four-door Chevrolet Caprice for hours. The group had set off from Montgomery, a nearby city, and was planning to find a place they could rob in Birmingham until the driver mistakenly got off at the wrong exit. After a few hours spent meandering around Talladega, including a stop-off for some burgers, they’d settled on the Auto Zone as their best option.
The group walked into the store, each waiting a few moments before following the others and spacing themselves out in the aisles among the other customers. Burton, who was 40 and had just been released from prison a year earlier, walked to the counter, where he bought a can of motor flush, along with a few other items.. The cashier had just started to ring up the next customer when Derrick DeBruce pulled out a gun.
“This is a robbery! Everybody get down!” DeBruce yelled.
Burton grabbed the cashier from behind. “Not you, you’re going with me,” he said, pulling the cashier toward the back room to open the safe. The others, guns drawn, began pulling wallets out of the pockets of the other customers who were lying prone on the ground. “We’ll give you anything you want. Just don’t hurt nobody,” the cashier pleaded in the back room. “Do exactly what I want and we won’t,” Burton promised.
Back on the shop floor, DeBruce walked past the nervous customers, cracking jokes and kicking them. Then, the front door opened and a middle-aged man named Doug Battle walked in, unaware of what was happening inside. LuJuan McCants, the youngest of the group at only 16 years old, instructed him to get on the floor. Startled, Battle froze. McCants yelled at him to get down again. Seeing what was going on, DeBruce walked up from behind and pistol-whipped Battle, who crumbled to the ground.
Bleeding and angry, Battle began to insult DeBruce. The two spat profanities at one another in an increasingly heated argument. By then, Burton had successfully emptied the safe, emerging from the back room with around $1,500 in cash. He made a beeline out of the Auto Zone, walking briskly toward the Caprice in the parking lot with the others following closely behind. DeBruce and McCants were the last two left in the store, and as McCants headed toward the exit and opened the door, he heard the sharp crack of a gunshot behind him.
DeBruce had threatened to shoot Battle in the buttocks, but instead the round entered his lower back, ricocheting through his body and causing massive damage to nearly every vital organ. When McCants and DeBruce jumped into the Caprice and told the others what had happened, Burton shook his head. “Why did you have to do that?” he asked. The group sped away from the Auto Zone, running red lights and nearly colliding with other motorists. One took note of the Caprice’s license plate and called the police to report a reckless driver.
By the time paramedics and police reached the Auto Zone, Battle was unconscious, and before long he was dead. Just over a week later, using the license plate number they’d been given by the tipster, the police tracked down and arrested all six men.
Today, three of them, including DeBruce, are still serving long prison sentences. McCants has since been released and another passed away. Burton, however, is on death row – the only one of the six to face execution for the events that transpired in the Auto Zone that day in 1991. Although he wasn’t inside the Auto Zone when DeBruce fired the shot that killed Battle, Burton was still convicted of capital murder and sentenced to die under a law that allows the death penalty for what are sometimes called “non-triggermen” – people who are held liable for a murder they didn’t commit.
Burton’s legal options to get off of death row have all but run out by now. His attorneys are working to save his life, but barring a grant of clemency, at some point in the future the state of Alabama will likely kill him for DeBruce’s crime.
By the time the United States gained independence from Great Britain, most of the former colonies had death penalty statutes that covered a wide range of crimes, including piracy and slave rebellion. Over the next 200 years, the number of crimes that could carry a sentence of capital punishment progressively narrowed as some states banned the practice outright and others restricted its use mostly to cases involving murder. But by the mid-1900s, there were still wide disparities in the processes by which different states put people to death.
Then, in 1972, the U.S. Supreme Court issued a landmark ruling in a case that consolidated three others involving separate defendants – two of whom had been sentenced to die for rape, and another whose gun had accidentally gone off during a burglary, killing the owner of the home he was in. By a narrow 5-4 majority, the court found in Furman v. Georgia that the application of capital punishment was so “harsh, freakish, and arbitrary” that it constituted a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. The decision effectively halted the death penalty across the country, as the court told states they would, in essence, have to overhaul their entire death penalty processes in order to resume killing people.
In states where the death penalty hadn’t already been banned, policymakers rushed to comply with the court’s order, passing new statutes that purported to limit the arbitrariness of capital sentencing. Four years later, the court approved these new statutes in Gregg v. Georgia and its companion cases, gradually allowing states to begin carrying out death sentences again, provided they could show that they were being applied in a less “arbitrary” fashion. The idea, as one justice would later say, was that only the “worst of the worst” should be subject to having their life taken away by the state.
For the death penalty to be constitutional, it would also have to be “proportional” to the crime for which it was being imposed. In 1977, the court’s ruling in Coker v. Georgia gave some clarity to what that might mean, limiting the use of capital punishment to the crimes of homicide and treason. In nearly all cases, that meant someone would have to be killed before prosecutors could seek the death penalty.
But there was one major gray area. Most states have a “felony murder” law on the books, which makes all participants in a major felony liable for any deaths that happen while they’re carrying out their crime, even if they didn’t set out to kill anyone or even play a direct role in the death itself. If a clerk is shot to death during a bank robbery, for example, the state can charge everybody who took part in the robbery with murder, whether or not they pulled the trigger. In the wake of Furman and Gregg, would the court allow a death sentence for these “non-triggermen,” or was that a disproportionate punishment?
In 1982, the court gave its first answer in a case called Enmund v. Florida. Earl Enmund was the getaway driver in a robbery gone wrong at a farmhouse in Florida. While he waited in the car, his two accomplices got into a shootout with the couple who owned the farm, killing them both. Enmund was later sentenced to death under Florida’s felony murder statute, even though he’d never even left the car.
But on appeal, the Supreme Court ruled that his punishment was disproportionate because he “did not kill, attempt to kill, or intend that a killing take place” and, therefore, his execution would violate both the Eighth and 14th Amendments. Enmund, the court ruled, would spend the rest of his life in prison, but Florida could not kill him. This appeared to set a standard for capital punishment for non-triggermen: The death penalty was unconstitutional unless they intended for someone to die.
But in 1987, the court muddied the waters. In Arizona, three brothers helped their father escape from prison by smuggling a cooler full of guns into a family picnic event that they used to hold up the guards. Later, when their getaway car broke down, the four of them flagged down a passing family. They forced the family out of the car at gunpoint, and while the brothers went to fetch water for the family, without warning the father shot and killed them all, including a two-year-old child. Along with one of the brothers, the father died during the subsequent manhunt, but the two remaining brothers were convicted of felony murder and sentenced to die.
In their case, Tison v. Arizona, the Supreme Court acknowledged that neither had intended for the family to be killed, but it upheld their death sentences anyway. Writing for the 5-4 majority, Justice Sandra Day O’Connor said the brothers played a “major” role in the prison break and carjacking. If the defendant displayed “reckless disregard for human life” in the course of a felony, the court said, then the death penalty was proportionate even when there was not a clear intent to kill.
The result of these two rulings was the creation of an unclear approach toward the death penalty for non-triggermen that varied from state to state, allowing prosecutors huge leeway in deciding when, and why, to bring capital charges in felony murder cases. According to Cassandra Stubbs, director of the ACLU Capital Punishment Project, these rulings opened the door to exactly the kind of arbitrary application of the death penalty that the Furman decision said was unconstitutional.
“I think if you talk to the average person they would expect that the death penalty is reserved for people who actually killed, and that’s just not the case,” she said.
According to the Death Penalty Information Center, at least 11 people have been executed for felony murder where they didn’t carry out the killing. But while advocates say it’s rare for these “non-triggermen” to wind up on death row, it’s impossible to tell just how rare. It’s hard to get reliable data on capital sentencing – states aren’t required to keep statistics on capital prosecutions, and there’s no national database that keeps track of how often prosecutors seek the death penalty or what statutes people on death row were convicted under.
“It’s really surprising, the degree to which we lack data about the death penalty,” said Cassandra Stubbs. “States have not collected or published data uniformly, and felony murder is one of those pieces we really don’t know that much about.”
Because the data is thin, it’s hard to analyze what factors were at work with the non-triggermen who are on death row. The few studies that do exist, including one conducted in California and another carried out to support the appeal of a man on death row in South Carolina, suggest racial bias might play a role. But without more data, Stubbs says it’s hard to say whether a similar pattern exists in other states as well. (Both Charles Burton and Doug Battle, the man whose murder he was sentenced to die for, are Black.)
In all, 27 states permit executions of non-triggermen. Some adhere to the higher bar set out in Enmund, requiring proof of the defendant’s intent to kill. Eight states require only the lower Tison standard of recklessness, including California, Florida, and Texas – the top three states in terms of the number of people on death row.
Arizona is another state where the Tison standard rules. One of the non-triggermen on death row there is Patrick Bearup, who was 25 years old when he was convicted of capital murder in 2003. Bearup fell in with a gang of skinheads in the early 2000s, although during his trial a co-defendant described him as a “weekend warrior” who was not particularly ideological. When one of Bearup’s friends, a woman named Jessica Nelson, suspected her roommate of stealing $200, she called her friends Sean Gaines and Jeremy Johnson, along with Bearup, to help her confront the man.
In the backyard of Nelson’s house, Johnson beat the man viciously with a baseball bat as Bearup stood by and watched, and Gaines later shot him in the hills north of Phoenix. After the man died, Bearup helped cut his finger off to remove a valuable ring, but even his co-defendants say he didn’t participate in the attack. Perplexingly, Johnson, Gaines, and Nelson were eventually offered plea deals by the county prosecutor – but not Bearup. He was tried and received a death sentence, despite the fact that the state never alleged that he planned or directly participated in the killing.
“The evidence at trial did not show that Patrick knew Johnson was going to haul off and attack this man, or that Gaines was subsequently going to shoot him,” said Stan Molever, Bearup’s current attorney.
Molever blames Bearup’s sentence on his trial lawyer’s shortcomings. He was an acquaintance of the family who had defended only one capital case before, and according to Molever, it’s unclear whether he even tried to obtain a plea deal for Bearup. The trial lawyer also failed to understand and properly advise Bearup about presenting mitigating evidence during the sentencing phase that might have spared him the death penalty.
Bearup’s father has an uglier explanation. Bearup was convicted in Maricopa County, domain of the infamous Sheriff Joe Arpaio. At the time, Bearup’s father was a major political rival of Arpaio’s, running against him in 2000 and then again in 2004 after the two had a high-profile falling out in the late 1990s. “It’s retaliation against me,” he told a local opinion columnist in 2015.
Molever can’t say for certain why Bearup wasn’t offered a plea deal when the other defendants in the case were. But even if the political activities of Bearup’s father didn’t meaningfully influence the prosecution or his sentencing, his case is still a grim example of how arbitrary death sentences for felony murder can be.
“Here we have someone on death row who isn’t even the worst of the worst among his own co-defendants,” said Molever.
Even the judge who presided over Bearup’s case seemed shocked by the outcome, saying in court proceedings that followed his conviction that the “death penalty sentence … was not justified.” He added, “Justice was not done for Mr. Bearup.”
In Tison, the Supreme Court allowed states to impose the death penalty for non-triggermen even if they didn’t intend for anyone to be killed and had no role in the murder. But even in those states that apply the higher Enmund standard, the outcome of felony murder capital prosecutions can still defy logic. Alabama, for example, requires “intent to kill” for felony murder to be a capital offense. But Burton’s case proves just how blurry a prosecutor can make that line seem.
The Caprice the six men had used in the Auto Zone robbery was registered to Derrick DeBruce, and it wasn’t long before police tracked it down to a house in Montgomery. The house had served as a sort of meeting spot for the group, and when police arrived they found four of the six men there, along with the Caprice and a bag full of guns. Neither Charles Burton nor LuJuan McCants was present that afternoon, but before long they were picked up too.
McCants, as it turned out, was in jail on a drug charge, and when detectives found and questioned him it wasn’t long before he broke down. He was only 16, but they told him he’d be tried as an adult, and that if he didn’t cooperate he’d be facing the electric chair.
“This was my first arrest and I felt intimidated,” he later wrote in an affidavit. “I was worried about what would happen to me.”
Talladega County – where the robbery and murder took place – is a notorious hotspot for capital punishment. Alabama has the highest proportion of death row prisoners per capita in the country, and among the state’s counties, Talladega has the second highest rate of capital sentences. Its district attorney at the time, Robert Rumsey, held a fearsome reputation for winning death sentences, and unsurprisingly he decided to bring capital charges against both DeBruce and Burton.
When Burton found out he was facing the death penalty, he was shocked. “I couldn’t believe they’d bring me up on capital charges,” he said in an interview. “I asked my lawyer, how can that be?”
To obtain a conviction for felony murder in Alabama, all a prosecutor has to do is show that the defendant played a role in a felony that led to someone’s death. But to get a death sentence, the prosecutor has to go further and prove the person had a “particularized intent to kill.”
There was little doubt that Burton had participated in the robbery. His fingerprints were on the items he’d bought from the cashier, and McCants had identified Burton in his interrogation. But the prosecution had to prove that he’d actually intended for someone to be killed that day. So Rumsey put McCants on the stand, hoping to paint Burton as the mastermind behind the robbery.
Rumsey asked the teenager to recount a conversation he’d had with Burton right before they entered the Auto Zone.
“Now, what would happen if somebody caused any trouble?” Rumsey asked McCants, with the jury looking on.
“Well, he said let him take care of it,” McCants answered.
It was flimsy proof that Burton had intended for anyone to be killed, so when Rumsey had a second opportunity to question McCants, he circled back to the conversation again:
“You said that back up at the car wash that Charley [Burton] said y’all will hit Auto Zone. If anyone had to get hurt, let him do it?”
Burton’s lawyer objected, saying that the question was leading.
“I was just restating what he said earlier,” Rumsey replied. But he rephrased his question: “Tell the ladies and gentlemen of the jury what he said about robbing Auto Zone, and if anything came up, what was the deal?”
McCants responded by repeating –almost word for word – what Rumsey had suggested Burton told him: “Well, he said that we was going to go to Auto Zone, and if anybody needed to be hurt, let him do it.”
At the defendant’s table, Burton was dumbstruck. “The prosecutor told him to say that,” he said. “I told my lawyer that it wasn’t true.”
Burton’s current attorney, Matt Schulz, an assistant federal public defender, agreed.
“I didn’t see any indication in [McCants’] initial testimony that meant there would necessarily be violence,” he said. “And I think that’s why the prosecutor followed up the way he did with putting words in his mouth.”
Rumsey “was able to get him to say what they needed him to say,” added Sara Romano, an investigator who works with Schulz. “He could easily scare him; he was young.”
McCants’ testimony about that conversation with Burton was the prosecution’s only real evidence that Burton had harbored an “intent to kill.” But spurred by what Schulz described as misleading instructions by the court, the jury decided it was enough.
In the end, even though it was DeBruce who shot and killed Doug Battle, with Burton having already left the Auto Zone, all 12 jurors handed down a conviction for capital murder. Burton would die at the hands of the state of Alabama.
Derrick DeBruce’s case was open and shut, and after LuJuan McCants testified against him he too was convicted and sentenced to death. But in 2002 – 10 years after he and Charles Burton stood trial – he caught a break. Ruling that his lawyer hadn’t adequately presented evidence of his intellectual disability during trial, an appeals court commuted DeBruce’s sentence to life without possibility of parole.
That left Burton as the only one to face the death penalty for Doug Battle’s murder.
Matt Schulz and Burton’s other attorneys have raised numerous challenges to the constitutionality of his sentence in state and federal courts, but so far they’ve been unsuccessful.
“It does seem rather unjust that the person who pulled the trigger isn’t on death row, but the person who was outside running the car and didn’t even witness the murder is,” said Schulz.
Three of the jurors who sentenced Burton to death have since signed affidavits saying that given DeBruce’s commutation they wouldn’t be opposed to a reduction being applied to Burton’s sentence as well. One specifically requested that Alabama’s governor take action:
“I think it is only fair that Mr. Burton’s sentence be reduced to life without possibility of parole,” he wrote. “So I am asking the Governor to consider commuting Mr. Burton’s sentence.”
Despite the Supreme Court’s ruling in Gregg that allowed states to resume killing people, the circumstances surrounding death sentences remain notoriously arbitrary. They can include a vindictive or ambitious prosecutor with an eye on higher office, eager to prove their “tough-on-crime” bonafides to voters. Or the line between life and death can come down to an inexperienced defense attorney, a jury driven by racial bias, or a judge influenced by political pressure. For people on death row who didn’t kill anyone, the system seems especially capricious and unfair.
“The fact that we have people who are being sent to death for felony murder when they didn’t actually kill, and in some cases where they didn’t even intend to kill, is a sign that we don’t have any claim that we’re applying the death penalty to the worst of the worst,” said Cassandra Stubbs of the ACLU.
At Holman Correctional Facility, Charles Burton struggles with physical as well as mental health issues. Schulz says that at one point the prison ran out of medication prescribed to Burton for mental health issues. He became delusional and paranoid, calling multiple times a week to recount frightening, nightmarish events that Schulz knew couldn’t be true. Now 68 years old, Burton also suffers from hepatitis C and severe rheumatoid arthritis. In spite of these ills, Schulz still describes him as “gregarious” and engaging with visitors.
“If we’re saying that the death penalty should be used for the most horrific crimes and the worst of the worst, this is not that case,” said Sara Romano.
Schulz added, “Mr. Burton admits he is not a saint. But the fact of the matter is that he did not kill anyone during the commission of this crime, and has never killed anyone. He is not a murderer, and did not promote or encourage DeBruce to pull the trigger.”
In 2016, Burton wrote a letter to Doug Battle’s family. In it, he apologized. “I never expected that it would end in Doug Battle losing his life in murder. And I was terribly horrified when I learned that it did,” he wrote.
On the phone, Burton said he wakes up every morning and thinks about the events that transpired that August day in Talladega: “If it wasn’t for DeBruce I wouldn’t be on death row, you know?”
He says he wants Battle’s family to know that he’s “not the type of person to take a person’s life.”
“I want to make sure [they] know that I’m really sorry about what happened to Doug,” he said in a mournful tone. “But I didn’t kill him.”