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APRIL 2021
The Christian Recorder
THECHRISTIANRECORDER.COM
PERVIS PAYNE: A CASE OF INNOCENCE, INTELLECTUAL DISABILITY, AND RACISM By Kelley Henry, Supervisory Assistant Federal Defender
Introduction. Pervis Payne, a person with intellectual disability, has steadfastly maintained his innocence throughout his 33 years on Tennessee’s death row. The U.S. Supreme Court has cautioned that persons with intellectual disability are at a “special risk for wrongful execution,” which is why they banned the execution of people with intellectual disability in 2002. The Tennessee Supreme Court has acknowledged that Mr. Payne presented undisputed evidence of intellectual disability but concluded that no procedural mechanism exists for Mr. Payne to present his claim. Mr. Payne’s case has all the ingredients of a wrongful conviction and death sentence. He is a Black man with intellectual disability who was accused of murdering a White woman in a county with a long history of racial violence and biased criminal justice; the prosecution played to racist themes and withheld exculpatory evidence; and the State is unable to account for key missing evidence that could help prove his innocence. With no motive for the crime, the prosecution painted Mr. Payne as a Black Super Predator looking for a White woman to sexually assault. This argument was persuasive in Shelby County, which has a long, troubling history of systemic racism and lynching, and Mr. Payne was convicted and sentenced to death. Before the crime, Mr. Payne had never been arrested as an adult or a juvenile; and, while he struggled in school due to his intellectual disability, had never presented any disciplinary problems. Although recent DNA testing was conducted on some items, the State has no explanation for how key pieces of DNA evidence that could conclusively prove who committed this crime—including the victim’s fingernail clippings—have gone missing. As Governor Bill Lee considers his clemency petition, support for Mr. Payne continues to grow in Memphis and across the state. A wide and diverse array of 150 faith, legal, legislative, and civil rights groups have urged the Governor to grant clemency. Mr. Payne must not be executed before his claims of intellectual disability and innocence have a full and fair hearing in court. Mr. Payne was scheduled for execution on December 3, 2020, but Governor Lee granted a reprieve due to COVID-19. The reprieve expires on April 9, 2021, making the need for a commutation urgent. Intellectual Disability and a Pending Legislative Fix. Mr. Payne is indisputably a person living with intellectual disability and suffers from neurocognitive impairment. His execution would therefore be unconstitutional. Educational records, expert findings, and administered tests confirm Mr. Payne’s intellectual challenges. Recent exams by Dr. Daniel Martell concluded that his IQ on the WAIS-IV scale is 72 with a functional score of 68.4. Overall, his diagnosis of intellectual disability is consistent with standards set by the American Association of Intellectual and Developmental Disabilities and the American Psychiatric Association. The State has never denied or challenged that Mr. Payne is intellectually disabled. In Atkins vs. Virginia, decided in 2002, the U.S. Supreme Court found that executing people with intellectual disability violates the Eighth Amendment ban
on cruel and unusual punishment. The Court explained that persons with intellectual disability are at a “special risk for wrongful execution” and recognized that intellectually disabled defendants are often unable to assist their lawyers and make poor witnesses. These concerns played out in Mr. Payne’s case. The Tennessee courts have held that they have no power to hear Mr. Payne’s claim and urged the legislature to create a legislative fix for persons like Mr. Payne who are denied an opportunity to present a claim that he is intellectually disabled and thus constitutionally ineligible for the death penalty because of procedural technicalities. The Tennessee Supreme Court has acknowledged that Mr. Payne presented undisputed evidence of intellectual disability and that the state has “no interest” in executing a person with intellectual disability but concluded that no procedural mechanism exists for Mr. Payne to present his Atkins claim. Although the state supreme court urged the Tennessee legislature to create a mechanism for prisoners like Mr. Payne to raise an Atkins claim, the legislature has not done so. The legislature is out of session and is unable to act prior to the December 3, 2020 execution date. The Chair of the Tennessee Black Caucus of State Legislators, Rep. G. A. Hardaway, filed a bill on November 4, 2020 to enable Mr. Payne and others to present their intellectual disability claims in state court. Racial Stereotypes. Prosecutors relied on powerfully prejudicial racist tropes of black male hypersexuality and drug abuse to convict Mr Payne. Police and prosecutors relied on racial stereotypes and ignored and even suppressed evidence inconsistent with their theory. Prosecutors argued that Mr. Payne, allegedly high on drugs and alcohol—although he had no history of substance use—made an advance on the victim, and when she refused, he stabbed her to death. The prosecutor further played to racial stereotypes by repeatedly mentioning the victim’s “white skin.” Mr. Payne was tried in Shelby County, which has a long history of systemic racism and lynching. The crime occurred in Millington, Tennessee, on the border of Shelby and Tipton Counties. Tipton County, where Mr. Payne and his family are from, also has a history of racial violence and lynching. Mr. Payne grew up hearing stories of white men torturing and murdering Black men. The KKK was active in Tipton County and Millington during the time of this trial. No Prior Criminal History. Mr. Payne has no prior criminal record or history of violence. Nothing in his background or upbringing suggests that he is capable of committing this crime. Mr. Payne had no prior contact with the legal system and has been a model prisoner since his wrongful incarceration. Despite academic challenges while in school, he never faced any disciplinary issues. Mr. Payne’s prison record remains unblemished. Mr. Payne’s family has stood by his side, fighting
for justice all these years. The Payne Family has largely been ignored and marginalized by a system biased against African Americans. Mr. Payne’s mother and older sister have passed away. His father, a minister, travels as often as he can to Nashville to be with his son even though he has Parkinson’s disease. Mr. Payne’s sister, Rolanda, is tirelessly working to bring the injustice of her brother’s case to light. Innocence Claim and Missing Evidence. As noted, Mr. Payne had no history of violence, had never been arrested, and was just 20 years old at the time. Visiting his girlfriend who lived across the hall from the victim, he heard noises and wanted to help. He was overwhelmed at the horrific crime scene and panicked. “I saw the worst thing I ever saw in my life and like my breath just had—had tooken—just took out of me…she was looking at me,” Mr. Payne testified in court. He did not know the victim nor did he have a reason to attack her, leaving him no clear motive to commit this crime. On January 19, 2021, Payne’s lawyers submitted results of DNA testing to the Shelby County Criminal Court in Mr. Payne’s case pursuant to the Court’s September 16, 2020 order for testing. Male DNA from an unknown third party was found on key evidence including the murder weapon; but unfortunately, it is too degraded to identify an alternate suspect via the FBI’s database, and DNA evidence that could conclusively prove his innocence have been “lost” by the State. Inexplicably, the State is unable to account for important missing pieces of forensic evidence, claims no knowledge of their whereabouts, and cannot explain why the evidence was not meticulously preserved. Shockingly, some of the most significant pieces of evidence in the case, including fingernail scrapings that should contain the DNA of the true perpetrator, are mysteriously missing. The fingernail clippings would be especially significant because the prosecution argued at trial that the victim scratched her assailant. The prosecution’s theory at trial was based on speculation and was inconsistent with the evidence. Prosecutors argued that Mr. Payne was high on drugs, though he had no history of drug use and his mother begged the police to perform a drug test on her son after his arrest, which they refused. Prosecutors argued that Mr. Payne became “sex crazed” after looking at a Playboy magazine, though there is no evidence the victim was sexually assaulted or that Mr. Payne had sex with her, nor is there any evidence that looking at magazines like Playboy leads to sexual assault or other violence. In fact, it was Jet Magazine, not Playboy, that Mr. Payne and his cousin were looking through that day. There are other more plausible suspects, including the victim’s ex-husband, Kenneth Christopher, who had a lengthy criminal record and history of physically, mentally, and emotionally abusing the victim. The victim’s divorce petition against Mr. Christopher cited cruel and inhumane treatment and neglect. The Shelby County District Attorney General’s Office has one of the worst reputations in the country. It has repeatedly been found to have suppressed evidence favorable to the accused. The current DA was publicly sanctioned for misconduct in a criminal case. Widespread Support for Clemency. A powerful coalition of 150 Tennessee faith, ...continued on p9
