The Shelby County Criminal Court ordered DNA testing of crime scene evidence that has never been tested in Pervis Payne’s case. Payne, a Black man with intellectual disability, is scheduled for execution on December 3, 2020.
“The court’s thoughtful and reasoned decision to order DNA testing in Pervis Payne’s case is just and in line with Tennessee’s clear DNA testing law. When DNA evidence exists in a death penalty case, as it does here, it should always be tested to avoid the irreversible act of executing an innocent man. Payne never should have been put on death row because he has an intellectual disability. The U.S. Supreme Court has banned the execution of people with intellectual disability, making the State’s pursuit of Mr. Payne’s execution all the more appalling," said Vanessa Potkin, Director of Post-Conviction Litigation at The Innocence Project and a member of Mr. Payne’s legal team, which includes Milbank LLP and Nashville attorney Kelley Henry.
When he was 20 years old, Payne was visiting his girlfriend when he heard noises across the hall and went to try to help. Because Payne was at the crime scene, police zeroed in on him and did not investigate other suspects, including another man Mr. Payne saw fleeing the scene and the victim’s violent ex-husband, according to the Innocence Project’s petition on his behalf.
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 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 Christopher’s “white skin.”
Numerous pieces of evidence from the crime scene have never been tested for DNA, including a knife, a tampon, and bloodstained items. 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.
Payne’s petition describes three cases similar to his, where bystanders were convicted after coming upon a murder scene and later had their convictions overturned as a result of DNA testing.
Just one day before the court's decision, attorney's for Payne filed a complaint in the U.S. District Court for the Middle District of Tennessee to prevent Tennessee from carrying out his execution until the State creates a procedure to adjudicate his claim that, as a person with intellectual disability, his execution would be unconstitutional. Payne had no prior criminal history before being convicted of a capital crime and has maintained his innocence for more than 30 years. The State of Tennessee has never disputed that Payne has an intellectual disability.
As Payne’s complaint details, the Tennessee Supreme Court held in 2016, in Payne’s own case, that Tennessee has no interest in executing people with intellectual disability and urged the Legislature to provide a process for people with intellectual disability to present their claims in court and determine their eligibility for execution. To date, neither the Tennessee Supreme Court nor the General Assembly has created a procedure for Payne and others like him.
Rep. G. A. Hardaway, the Chair of the Tennessee Black Caucus of State Legislators, recently announced that the Caucus will file a bill to enable Mr. Payne and others to present their claims in state court on “day one” of the next legislative session. The first day of the next session is after Dec. 3, 2020, Payne’s scheduled execution date.
“The U.S. Supreme Court banned all executions of people with intellectual disability. The Court recognized that people with intellectual disability present ‘a special risk of wrongful execution’ because they have trouble assisting their attorneys and make poor witnesses on their own behalf. This is precisely what happened to Pervis Payne, leading to his wrongful conviction,” said Katie Powers, a past president of the Tennessee Disability Coalition. “Tennessee must not execute Mr. Payne without giving him a process for presenting the overwhelming evidence of his intellectual disability in court.”
Payne’s complaint states: “Despite twice decreeing, ‘Tennessee has no business executing persons who are intellectually disabled,’ the Tennessee Supreme Court has shut the door to every attempt by Mr. Payne to adjudicate his claim. Mr. Payne filed motions to reopen, a petition for writ of error coram nobis, and a petition for declaratory judgement. Each attempt has been denied for procedural reasons.”
In 2019, Dr. Daniel Martell, a prominent forensic psychologist, conducted the most comprehensive testing and examination of Payne to date. Martell concluded that Payne has an intellectual disability and that he meets all of the criteria for intellectual disability under Atkins v. Virginia, the 2002 U.S. Supreme Court decision that bars the execution of people with this diagnosis. Martell was the expert for the State of Virginia in Atkins and both the defense and the government have relied on Martell’s expert opinion in hundreds of cases. In fact, the State of Tennessee retained and relied on Martell’s diagnosis in two other capital cases.
As Martell’s report details, Payne received an IQ score of 72 and a lower score of 68.4 when corrected for outdated testing norms. His reading skills are in the bottom 5th percentile for his age, his math skills are below the bottom 0.1 percentile, and his memory skills are in the bottom 1st percentile. Martell also found his language functioning was significantly impaired, with an inability to find words for things, an inability to pronounce words correctly, and neurodevelopmental stuttering. Martell found additional evidence of intellectual disability and made his conclusion based on standards set by the American Association for Intellectual and Developmental Disabilities, the American Psychiatric Association, and Tennessee law.
From an early age, family, friends, teachers and fellow students recognized that Payne had intellectual disability. He had trouble learning to read, do math, and follow instructions and was unable to finish high school, although he worked hard and never presented any disciplinary problems. At home, he was not able to perform chores like ironing his clothes or helping younger siblings with their homework. Payne’s next door neighbor recalled that he could not feed himself until he was five.
Republished courtesy of the Innocence Project. Photo: Pervis Payne in Riverbend Maximum Security institution in Tennessee. Credit: PervisPayne.Org.