RICHMOND – Today, Governor Terry McAuliffe commuted the death sentence of William Burns to life in prison without the possibility of parole. Mr. Burns has been declared incompetent to stand trial on his pending claim that he cannot be executed due to intellectual disability, and the combination of these factors—his mental illness and potential intellectual disability—have left this case in a procedural holding pattern since the early 2000s. Today’s commutation ends the cycle of court proceedings concerning this case while ensuring that Mr. Burns remains confined as a result of the horrendous crimes he committed. Governor McAuliffe’s full commutation order is below:
TO ALL WHOM THESE PRESENTS SHALL COME – GREETINGS:
In accordance with the powers granted to me as Governor of Virginia under Article V, Section 12 of the Constitution of Virginia, I, Terence R. McAuliffe, do hereby grant to William Joseph Burns, a commutation of the death sentence imposed by the Circuit Court of Shenandoah County to life imprisonment without the possibility of parole. This Commutation is based on the following:
On September 21, 1998, William Joseph Burns committed the brutal rape and murder of his mother-in-law Tersey Elizabeth Cooley, who was 73 years old. He was tried and convicted of capital murder in the commission of rape and/or forcible sodomy, statutory burglary, rape, and forcible sodomy. For his capital offense, the jury imposed the death sentence on Mr. Burns. Judgment was entered on May 12, 2000, which was affirmed by the Supreme Court of Virginia on March 2, 2001.
In habeas proceedings, Mr. Burns raised the issue of intellectual disability, and his competency to stand trial had been raised and rejected during his trial. Subsequent to the judgment imposing the death sentence on Mr. Burns, the United States Supreme Court ruled in Atkins v. Virginia, 536 U.S. 304 (2002) that it was a violation of the Eighth Amendment to execute the intellectually disabled as cruel and unusual punishment.
Invoking procedures established by the Virginia General Assembly to resolve Atkins claims in post-conviction proceedings, Mr. Burns sought to adjudicate the issue of his alleged intellectual disability. Success in establishing his intellectual disability would have made him ineligible for the death sentence. The Supreme Court of Virginia held that Mr. Burns’s claim of intellectual disability was not frivolous and remanded the case for trial by the Circuit Court of Shenandoah County. See Burns v. Warden, 269 Va. 351 (2005). During those remanded proceedings, Mr. Burns again showed signs of severe mental illness. His attorneys moved the trial court to rule Mr. Burns incompetent to participate in the Atkins proceedings, as a court-appointed psychiatrist had found him to suffer from “psychosis, impairment of autobiographical memory, derailment of language and thought, and significant social deterioration.”
The trial court ruled that his competence was not required to proceed; however, this issue was appealed, and the Supreme Court of Virginia ruled that Mr. Burns has a constitutional right to be competent for adjudication of his intellectual disability claims. It remanded the case to the trial court for further proceedings, but ruled that it could not proceed to trial on the intellectual disability claim unless and until Mr. Burns was mentally competent. See Burns v. Commonwealth, 279 Va. 243 (2010).
Mr. Burns has long-suffered from severe mental illness. Indeed, since 1999, six forensic psychologists or psychiatrists have evaluated him and found him not competent to stand trial. His trial was delayed due to his lack of competency and, since being in custody, has not showed signs of stabilizing. Treating and consulting experts have confirmed that Mr. Burns is not likely to be restored to competence. To date, over $350,000 has been spent treating, transferring, monitoring, and litigating whether Mr. Burns has the mental competence to conduct a trial on whether he has the intellectual capacity to be executed. Additionally, a psychiatric expert found little evidence to support any theory that Mr. Burns is malingering impairments.
In reviewing Mr. Burns’s clemency petition, I have also considered the views of the Commonwealth’s Attorney who prosecuted Mr. Burns and the victim’s family, who oppose clemency in this case. But I have determined that continued pursuit of the execution of Mr. Burns is no longer in the best interests of the Commonwealth. As of now, there is no lawful way to impose the death sentence on Mr. Burns, and there is no clear path for that ever being possible. To do so would require returning Mr. Burns to competency (which experts believe unlikely to occur), defeating his claim of intellectual disability in a jury trial, exhausting appeals of that and other claims, setting an execution date, defeating subsequent litigation over his execution, and maintaining his mental competence for execution. This process will be time-consuming, will tax the resources of the Commonwealth, poses greater risk to public safety through the need to transfer Mr. Burns to less secure facilities for treatment, and, in the end, shows little promise of ever resulting in his execution.
As Governor, it is my responsibility to ensure that the Commonwealth carries out the death penalty in accordance with the requirements of the Constitution, which forbids cruel and unusual punishment (here, potential execution of the intellectually disabled) and requires due process (here, the mental competence to participate in one’s defense). These are unyielding requirements, and I have concluded that continued pursuit of the execution of Mr. Burns, both as a matter of constitutional principle and legal practicality, cannot be justified.
There is no doubt that Mr. Burns committed an unimaginably heinous crime. He will not evade punishment—he will be incarcerated for the remainder of his life. Commuting Mr. Burns’s sentence to life without possibility of parole brings finality to these legal proceedings; it assures the victim’s family that Mr. Burns will never again enjoy freedom, but without the torment of post-trial litigation; and it allows the Commonwealth to devote its resources towards other cases. In my view, this is the only just and reasonable course.
NOW, THEREFORE, I, Terence R. McAuliffe, Governor of the Commonwealth of Virginia, in accordance with the authority granted to me under Article V, Section 12 of the Constitution of Virginia, do hereby grant to William Joseph Burns a commutation of his sentence of death for capital murder imposed by the Circuit Court of Shenandoah County to life imprisonment without the possibility of parole.
Given under my hand and under the Lesser Seal of the Commonwealth at Richmond, this 29th day of December, Two Thousand Seventeen and the 241st year of the Commonwealth of Virginia.