Leaders in the Tennessee African-American community are urging Governor Bill Lee and the state and federal courts to halt the execution of a Black death-row prisoner who may be both innocent and intellectually disabled and who has been denied access to the courts to review those claims.

A growing coalition of state legislators, legal associations, faith leaders, and community groups in Memphis have called for the courts to permit DNA testing that could potentially exonerate Pervis Payne (pictured) in a racially charged murder case. They are also asking the governor to commute Payne’s death sentence or postpone his scheduled December 3, 2020 execution so that the state legislature can address a defect in Tennessee law that has left intellectually disabled death-row prisoners without any legal procedure to establish their ineligibility for the death penalty.

On August 31, 2020, a coalition of African-American groups issued a press release calling on Shelby County District Attorney Amy Weirich to drop her opposition to DNA testing in the case. The organizations — led by the Ben F. Jones Chapter of the National Bar Association, and including the Tennessee Black Caucus of State Legislators, the Memphis Branch of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, Inc., the National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, the Memphis Interfaith Coalition for Action and Hope (MICAH), the Church of God in Christ (COGIC) National General Board Member Bishop Brandon Porter, COGIC Bishops Linwood Dillard, Jr. and David Hall, Sr., Hope Fellowship Church Pastor Dr. Timothy Jackson, Jr., Carlos Moore, President-Elect of the National Bar Association, and Just City — criticized as racist the arguments prosecutors had used to condemn Payne for the rape and murder of a white woman, Charisse Christopher, the fatal stabbing of her 2-year-old daughter, and the stabbing of her 3-year-old son, who survived the attack.

Racial Bias and DNA Testing

At trial, prosecutors characterized Payne — a pastor’s son who had no prior record, no history of drug use, and no history of violence — as a sexually predatory black man, high on drugs, who attacked a white woman. Without evidence, they asserted that Payne had sexually assaulted Christopher, showing the jury a bloody tampon that they asserted he had pulled from her body. However, the tampon did not appear in any of the police photos or video taken at the crime scene.

Shelby County Commissioner Van Turner, president of the Memphis chapter of the NAACP, asked: “What does the district attorney’s office have to hide? All we’re asking is for DNA to be tested. … If this is a fair conviction, if your guys got it right, if you have nothing to hide, then give us the DNA test. When you resist a DNA test, we know something wrong has occurred. … If you’re trying to hide something, something bad has gone down.”

In a 2013 study, DPIC found that Shelby County had the 13th largest county death-row in the country, with more condemned prisoners than 99.5% of all U.S. counties. Its district attorney’s office was cited in a 2017 report by Harvard’s Fair Punishment Project for its high level of prosecutorial misconduct.

Payne’s Intellectual Disability Claim

Since 2002, it has been unconstitutional to subject those with intellectual disability to the death penalty. Payne has sought, but has been denied by the Tennessee state courts, an opportunity to present evidence of his intellectual disability to the state courts.

On September 14, 2020, Payne filed a motion in federal district court seeking a stay of execution to ensure that he receives a hearing on his intellectual disability claim. His complaint notes that the Tennessee Supreme Court, having “twice decree[d], ‘Tennessee has no business executing persons who are intellectually disabled,’” nevertheless “shut the door to every attempt by Mr. Payne to adjudicate his claim.”

Rep. Hardaway said that the Tennessee Black Caucus of State Legislators will be introducing a bill when the legislature reconvenes next year that would create a procedural mechanism to allow the state courts to consider prisoners’ intellectual disability claims. He asked Gov. Lee “to demonstrate by his actions what we’ve heard so often, and that is his commitment to … real criminal justice reform,” by commuting Payne’s death sentence or putting off his execution until the legislature can address the procedural flaw that has prevented Payne and other death-row prisoners from litigating their intellectual disability claims.

Payne has presented evidence that his IQ falls within the range of scores qualifying for an intellectual disability diagnosis, and Tennessee prosecutors have never presented any evidence challenging his disability. In a news release, disability advocates expressed support for Payne’s claim. Katie Powers, who previously served as president of the Tennessee Disability Coalition, said “Tennessee must not execute Mr. Payne without giving him a process for presenting the overwhelming evidence of his intellectual disability in court.”

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Katherine Burgess, Pervis Payne asks for halt to exe­cu­tion until courts hear intel­lec­tu­al dis­abil­i­ty claim, Memphis Commercial Appeal, September 14, 2020; Katherine Burgess, Attorneys, faith lead­ers com­pare Pervis Payne death penal­ty to lynch­ing, ask for DNA test­ing, Memphis Commercial Appeal, August 31, 2020; Katherine Burgess, ​‘See what actu­al­ly hap­pened,’ group says in urg­ing for DNA test­ing in Pervis Payne case, Memphis Commercial Appeal, September 7, 2020; Steven Hale, Growing Coalition Backs Pervis Payne’s Fight for DNA Testing, Nashville Scene, September 8, 2020; Jay W. Belle Isle, Bar Association & Civic Groups Urge DNA Testing in Pervis Payne Case, Legal Reader, September 7, 2020.