Defense Lawyers Say DNA Tests Point to ​‘Unknown Male’ as Likely Killer in Tennessee Death-Row Prisoner Pervis Payne’s Case

Lawyers for Tennessee death-row pris­on­er Pervis Payne say DNA test­ing in his 30-year-old case points to an ​“unknown male” and excludes Payne as the per­son who stabbed to death Charisse Christopher and her 2‑year-old daugh­ter, Lacie, and seri­ous­ly wound­ed her 3‑year-old son, Nicholas. 

In a state­ment issued on January 19, 2021, Payne’s lawyers from the Innocence Project and the Middle District of Tennessee fed­er­al defender’s office said that “[m]ale DNA from an unknown third par­ty was found on key evi­dence includ­ing the mur­der weapon.” The test­ing results, they said ​“are con­sis­tent with Pervis Payne’s long-stand­ing claim of innocence.”

In December 2019, after a court order gave Payne’s coun­sel access to evi­dence held by the coun­ty clerk’s office, the defense for the first time dis­cov­ered the exis­tence of phys­i­cal evi­dence that had been with­held from the defense for three decades. Payne’s lawyers filed a peti­tion in a Shelby County tri­al court in July 2020 seek­ing DNA test­ing of that evi­dence. That test­ing found DNA on the han­dle and the blade of the knife used in the killings that came from two of the vic­tims and from a male who has not been iden­ti­fied. According to the DNA report, which defense coun­sel pre­sent­ed to the tri­al court on January 19, Payne’s DNA was found on the hilt of the knife, but not on the han­dle. His lawyers said that evi­dence sup­ports his tes­ti­mo­ny that he had touched the knife while try­ing to help the vic­tims after the attack.

Supervisory assis­tant fed­er­al defend­er Kelley Henry char­ac­ter­ized the DNA evi­dence as ​“100% excul­pa­to­ry.” The han­dle of the knife con­tained “[m]ale DNA that is not Pervis Payne,” she said. ​“The per­son that held the knife, it wasn’t Pervis Payne, because he’s elim­i­nat­ed. They use that word in the report, eliminated.”

Henry said the defense planned to present the new DNA evi­dence to Tennessee Governor Bill Lee as an amend­ment to Payne’s pend­ing clemency petition.

Assistant dis­trict attor­ney Steve Jones told Shelby County Criminal Court Judge Paula Skahan that the DNA results did not exclude Payne as a par­tic­i­pant in the mur­ders. ​“It cer­tain­ly does not excul­pate Payne on guilt or pun­ish­ment,” he said. Shelby County District Attorney Amy Weirich issued a state­ment January 19 assert­ing that “[t]he evi­dence of Payne’s guilt was and still is over­whelm­ing. … Partial uniden­ti­fied DNA on the han­dle of the mur­der weapon is a false mys­tery. It could have come from any­one at any time – before or after the murders.” 

The DNA report showed that the uniden­ti­fied male DNA appeared in the same two places on the knife as the DNA from the crime vic­tims. Defense lawyers said the DNA was ​“too degrad­ed to iden­ti­fy an alter­nate sus­pect via the FBI’s database.” 

The defense had also sought test­ing of oth­er evi­dence that the pros­e­cu­tion lat­er said it had been able to locate in the two evi­dence rooms and foren­sic cen­ter that has held the evi­dence since the tri­al. ​“We con­tin­ue to find it frus­trat­ing and dis­turb­ing that the State still 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,” the defense state­ment said. ​“Today’s results make crys­tal clear that it would be a gross mis­car­riage of jus­tice for Tennessee to exe­cute Pervis Payne.”

During court pro­ceed­ings on January 19, Judge Skahan echoed the prosecution’s view of the DNA evi­dence. ​“There is noth­ing that exon­er­ates Pervis Payne that is shown in this lab result. Nothing exon­er­ates him,” she said. Media cov­er­age of the pro­ceed­ings indi­cat­ed that when Henry insist­ed that the defense lawyers ​“still want to know where the fin­ger­nail scrap­ings are,” Skahan ​“sharply” replied, ​“They’re not available.”

Skahan said dur­ing the court pro­ceed­ing that she was dis­miss­ing Payne’s peti­tion. The Memphis Commercial Appeal report­ed that Henry told reporters after­wards that she found that state­ment con­fus­ing because the defense had asked only for DNA test­ing, not a new tri­al, and that the test­ing had already taken place. 

In addi­tion to his claim of inno­cence, Payne’s lawyers have argued that pros­e­cu­tors with­held excul­pa­to­ry evi­dence dur­ing his tri­al and made racist argu­ments to the jury false­ly accus­ing him of being a sex­u­al­ly preda­to­ry black man, high on drugs, who attacked a white woman. Payne is the son of a pas­tor who had no pri­or record, no his­to­ry of drug use, and no his­to­ry of vio­lence. Without evi­dence, pros­e­cu­tors assert­ed that Payne had sex­u­al­ly assault­ed Christopher, and they pre­sent­ed the jury with a bloody tam­pon that they claimed Payne had pulled from her body. However, no tam­pon appeared in any of the police pho­tos or video tak­en at the crime scene. Payne has also pre­sent­ed evi­dence he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty, but the Tennessee state courts have ruled that no pro­ce­dur­al mech­a­nism exists in the state for him to obtain court review of that claim.