Defense Seeks DNA Testing for Pervis Payne, Alleging Racism, Hidden Evidence, and Intellectual Disability Led to Wrongful Conviction

The Innocence Project and fed­er­al defend­ers have filed a motion in a Shelby County, Tennessee tri­al court seek­ing DNA test­ing of phys­i­cal evi­dence hid­den by pros­e­cu­tors for 30 years that they believe will exon­er­ate death-row pris­on­er Pervis Payne (pic­tured). Payne, who is sched­uled to be exe­cut­ed on December 3, 2020, has stead­fast­ly denied com­mit­ting the crime. The lawyers argue that his con­vic­tion and death sen­tence are the com­bined prod­uct of racial bias by a prosecutor’s office with an exten­sive his­to­ry of mis­con­duct and Payne’s intellectual disability.

Payne was sen­tenced to death in 1988 for the stab­bing deaths of Charisse Christopher and her two-year-old daugh­ter and the attempt­ed mur­der of her three-year-old son. Payne’s girl­friend lived on the same floor as the vic­tims. He says he was on his way to vis­it­ing her when a man ran past him and, see­ing the door open, he entered Christopher’s apart­ment and found her in the kitchen. Payne said that when he heard police arriv­ing, he pan­icked and ran from the apart­ment because he feared that the mur­ders would be blamed on him.

Police focused their entire inves­ti­ga­tion on Payne even though he had no crim­i­nal record and no clear motive for the killings. They failed to inves­ti­gate oth­er sus­pects with a stronger motive such as Christopher’s abu­sive ex-hus­band or a local drug deal­er who fre­quent­ed Christopher’s apartment. 

At tri­al, pros­e­cu­tors played on racial stereo­types, char­ac­ter­iz­ing Payne as a sex­u­al­ly preda­to­ry black man, high on drugs, who attacked a white woman. They argued, with­out evi­dence, that Payne had sex­u­al­ly assault­ed Christopher, pre­sent­ing a bloody tam­pon that they assert­ed he had pulled from her body. However, the tam­pon did not appear in any crime scene pho­tos or video. Police also claimed to have found evi­dence that linked Payne — who had no his­to­ry of drug use — to drugs but refused a request by Payne’s moth­er, short­ly after his arrest, that he be per­mit­ted to take a drug test. 

In December 2019, when a court order pro­vid­ed defense coun­sel access to evi­dence held by the coun­ty clerk’s office, the defense for the first time dis­cov­ered the exis­tence of a blood-stained com­forter, bed­sheets, and pil­low. Payne’s lawyers have asked for expe­dit­ed DNA test­ing of this evi­dence. Assistant fed­er­al defend­er Kelley Henry, one of the lawyers who rep­re­sents Payne said, “[t]he pros­e­cu­tors ille­gal­ly hid this evi­dence for three decades. That’s just wrong. … But there’s still time to save this man’s life.” 

Payne is also request­ing DNA test­ing of oth­er crime scene evi­dence, includ­ing a tam­pon, blood­stained cloth­ing, a weapon, fin­ger­nail clip­pings, and poten­tial­ly a rape kit. DNA test­ing was not yet avail­able at the time of Payne’s tri­al, and the Tennessee courts denied a pri­or request to test the evi­dence, rely­ing on a Tennessee Supreme Court deci­sion that the court lat­er admit­ted had mis­ap­plied Tennessee’s post-con­vic­tion DNA testing act.

The inves­ti­ga­tion and tri­al of Payne’s case — in the coun­ty that had the most known lynch­ings in the state of Tennessee and was respon­si­ble for near­ly half of its death sen­tences — was repeat­ed­ly taint­ed by racial bias. While police were inter­ro­gat­ing him, Payne lat­er told his sis­ter, they said to him: ​“you think you black now, wait until we fry you.” Prosecutors argued that Payne had com­mit­ted sex­u­al assault and mur­der because a white woman had rebuffed his sex­u­al advances. They also with­held key evi­dence from the defense and pre­sent­ed vic­tim-impact evi­dence that flout­ed a U.S. Supreme Court rul­ing that had been issued just months before. The Tennessee state courts excused the con­sti­tu­tion­al vio­la­tion as harm­less and, after the U.S. Supreme Court agreed to hear the case, it reward­ed the prosecution’s mis­con­duct by over­rul­ing its pri­or vic­tim-impact deci­sions, per­mit­ting Payne’s death sen­tence to stand. 

In a state­ment, Innocence Project attor­ney Vanessa Potken said that “[r]acism, hid­den evi­dence and intel­lec­tu­al dis­abil­i­ty were a recipe for wrong­ful con­vic­tion for Pervis Payne.” ​“The pres­ence of DNA belong­ing to some­one oth­er than Mr. Payne,” she says, ​“would sup­port the con­sis­tent sto­ry that he has told for more than 30 years: He was an inno­cent bystander who came upon the crime scene.”