Black Legislators, Legal Associations, Faith Leaders, and Community Groups Call for DNA Testing/​Intellectual Disability Hearing that Could Take Pervis Payne Off Tennessee’s Death Row

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 13^th 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.”