By Bobby Mathews, Sports Editor
BIRMINGHAM — Jefferson County Circuit Judge Clyde Jones gave the jury in the Joshua Stewart Burks trial the option of what is known as a “lesser included charge” during his instructions on Thursday. Burks is on trial for a May 1, 2020 shooting during a hunting trip that left an 11-year-old Trussville boy dead.
Jones instructed the jury that they could consider the lesser charge of criminally negligent homicide, which carries lighter penalties than the reckless manslaughter charge for which Burks is being tried.
The prosecution and defense agreed to allow the lesser charge to be added to the jury’s instructions prior to the start of deliberations. The jury continues to deliberate here on Friday morning, April 22.
Troy Ellis and his father, Obed, were on a hunting trip with Burks on a hunting trip organized for wounded veterans guided by Kyle Henley on May 1, 2020, the day that Troy was killed. The hunt has been presented as a trip set by the America’s Heroes for Recreation Outdoors. However, the organization has denied involvement with the hunt.
In an email to this reporter late Thursday night, AHERO president Lee Stuckey sought to have the organization’s name removed from articles covering the death of Troy Ellis and the subsequent trial of Burks.
Burks, a former U.S. Marine and a teacher and coach, claims he thought Troy Ellis was a turkey when he shot the boy with a an Ithaca Mag 10 shotgun.
While the district attorney’s office has pursued charges against Burks, the defense has presented the incident as a tragic accident.
Burks took the stand in his own defense on Thursday, bolstered by the testimony of Corky Pugh, the retired director of the Alabama Department of Conservation and Natural Resources’ Wildlife and Freshwater Fisheries Division, who has reviewed at least 70 hunting accidents in his work at the division and has worked as a guide for turkey hunts. Pugh said that Henley made what turned into a fatal mistake when he left Burks alone prior to the fatal shot.
The prosecution rested after a taxing day of testimony regarding physical evidence on Wednesday, and the two sides stated their closing arguments on Thursday afternoon. The jury began its deliberations shortly before 2 p.m.
The Ellis family has settled a wrongful death lawsuit against Burks, Henley and the AHEROES organization in October 2021. The suit claimed, among other things, that Burks had taken a significant amount of pain medication the night before the hunt as well as the morning that they were out in the woods, and that he was “likely not capable of safely handling a firearm and certainly was not capable of making appropriate decisions with regard to handling a weapon.” However, there has been no evidence presented at trial that the defendant was under the influence of any kind of drugs.