A petition for post-conviction DNA testing was filed on behalf of Pervis Payne, a black man with intellectual disability on Tennessee’s death row. Payne, who had no prior criminal history, has maintained his innocence for more than 30 years and is represented by Innocence Project attorneys Barry Scheck and Vanessa Potkin, Nashville attorney Kelley Henry, and Scott Edelman, Jed Schwartz, and Andrew Porter of Milbank LLP. On December 20, 2019, Payne’s attorneys found hidden evidence at the Shelby County Criminal Court clerk’s office that the State withheld and has never been tested for DNA. He is scheduled for execution on December 3, 2020.
“Racism, hidden evidence, and intellectual disability were a recipe for wrongful conviction for Pervis Payne,” said Vanessa Potkin, Innocence Project Post-conviction Litigation Director. “Police zeroed in on Mr. Payne immediately and never investigated any other suspects. The presence of DNA belonging to someone other than Mr. Payne would support the consistent story that he has told for more than 30 years: he was an innocent bystander who came upon the crime scene.”
The crime scene evidence indicated that the crime could have been a crime of rage by someone close to the victim, but police focused exclusively on Payne, who was the boyfriend of the victim’s neighbor and who found the victims’ bodies. Nothing in Payne’s background or behavior suggests that he is capable of such a crime. There was no evidence that Payne used drugs and he had no criminal history as a juvenile or adult.
However, at trial, the prosecution relied on racial stereotypes and fears, arguing that Payne, a black man, had taken drugs and was looking for sex, and attacked and killed Charisse Christopher, a white woman, her two-year-old daughter, and non-fatally stabbed her four-year-old son. To make up for a lack of motive, the prosecution argued that Christopher had been sexually assaulted, a claim that was inconsistent with the crime scene, where she was discovered fully clothed. As Payne sat at the defense table, the prosecution reminded the jury of Ms. Christopher’s “white skin.”
Evidence from the crime scene that has never been subject to DNA testing includes a comforter, sheets, and pillow with blood stains that were recently discovered in the court clerk’s office. Numerous other pieces of evidence from the crime scene include a tampon, bloodstained clothing, a weapon, fingernail clippings, and potentially a rape kit. Payne’s defense team was unaware that some of this evidence existed until the very end of last year.
“The prosecutors illegally hid this evidence for three decades. That’s just wrong. But there’s still time to save this man’s life,” attorney Kelley Henry said.
The newly discovered hidden evidence contradicts the State’s case against Payne in several important ways. For example, the State’s theory was that the crime occurred only in the kitchen. This does not explain newly discovered bloody bedclothes. There are other suspects, including the victim’s violent ex-husband and another man seen fleeing from the scene, according to the Innocence Project’s petition.
The Innocence Project’s petition also describes three cases similar to Payne’s, where bystanders were convicted after coming upon a murder scene and later had their convictions overturned as a result of DNA testing.
Payne was only 20 years old at the time of the crime and intellectually disabled, although that fact was not recognized at the time of the trial. He has an IQ of 72 and other evidence of intellectual disability. One of the main reasons the U.S. Supreme Court barred the execution of people with intellectual disability in Atkins v. Virginia (2002) is that they present a special risk of wrongful conviction. Payne was convicted, in part, because he was unable to assist his attorneys in making his defense and he made a poor witness on his own behalf.
The Innocence Project brief states: “DNA testing, which was unavailable at the time of Mr. Payne’s trial and has not been performed any time since, could provide scientific proof of the assailant’s identity and exonerate him. Mr. Payne now faces a December 3, 2020 execution date having never had a chance to access DNA testing capable of proving his innocence.”
Republished courtesy of Innocence Project. Photo: Pervis Payne in Riverbend Maximum Security institution in Tennessee. Photo courtesy of PervisPayne.Org/Innocence Project