Judge, attorneys react to killer’s commuted sentence

Gov. Terry McAuliffe’s decision to commute the death sentence of convicted killer William Joseph Burns to life imprisonment without parole is both supported and opposed by those involved in the case.

Burns, of Wardensville, West Virginia, was convicted in 2000 of the 1998 rape and murder of his 73-year-old mother-in-law, Tersey Elizabeth Cooley in Edinburg. A jury recommended the death penalty for Burns, and Circuit Judge Dennis L. Hupp imposed the sentence. Burns’ competency and intellectual disability were contested during trial proceedings, which led to an appeal to the Virginia Supreme Court after Burns’ conviction.

The Virginia Supreme Court — which determined after Burns’ case was tried that it was unlawful to execute someone who was intellectually disabled — sent Burns’ case back to Shenandoah County Circuit Court for a factual determination of Burns’ intellectual disability. The expert appointed to make that determination advised that Burns’ mental state had deteriorated to the point that his level of “mental retardation,” which is now referred to as intellectual disability, could not be determined, defense attorney Jonathan Sheldon said Tuesday, which led to Burns being found incompetent to stand trial and having to undergo further treatment.

“We were back at trial in 2003 to determine if he’s mentally retarded, but we couldn’t determine that because his mental illness–which is different from mental retardation–his mental illness had gotten so severe that he couldn’t take an IQ test to determine if he was intellectually disabled.”

McAuliffe said in a news release that he based his decision to commute Burns’ death sentence on Burns’ mental illness and potential intellectual disability.

“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,” McAuliffe said in the release. ” But I have determined that continued pursuit of the execution of Mr. Burns is no longer in the best interests of the Commonwealth.”

Prince William County Commonwealth’s Attorney Paul Ebert, who prosecuted the case, confirmed on Thursday that he disagrees with the governor’s choice to commute Burns’ sentence.

“If he’s incompetent he can’t be executed, and so far the court has found him to be incompetent,” Ebert said before expressing concerns that because Burns’s competency had been restored in the past, Burns could be “malingering” now.

“It’s contrary to what the jury decided in this case,” Ebert said of the governor’s decision.

McAuliffe also said the process to impose the death penalty would be time consuming and “tax the resources of the Commonwealth” as additional reasons for his decision.

“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,” McAuliffe said in the release, adding that to do so requires restoring Burns’ competency, which experts have been unable to do for years and advocated that it is unlikely to ever happen.

Hupp, who presided over both the original case and the later proceedings, referred to the case as an “ordeal” in an interview Wednesday, adding that everyone involved in the case was charting a new course in finding how to legally handle Burns’ situation.

“Realistically, he was going to be serving a life sentence anyway, and remain confined while we tried to restore his competency,” Hupp said. “It had not been achieved over several years, and the experts were telling me they didn’t think they were going to be able to restore his competency — it made no sense to continue doing that.”

Sheldon said that Burns sentence being commuted to life imprisonment is the “right outcome” because Burns should never be free and should never be executed, and it was an enormous waste of resources to represent Burns knowing that nothing could go forward given Burns’ mental illness and intellectual disability.

“It is a case in which he was so obviously, so severely mentally ill, that I don’t think anybody that had the understanding that he was that mentally ill would think that there was any other just outcome for the case,” Sheldon said.