Alleging that Shelby County Assistant District Attorney General Stephen Jones may have been rep­re­sent­ing the pros­e­cu­tion in his case while simul­ta­ne­ous­ly serv­ing as a cap­i­tal case staff attor­ney assist­ing the county’s judges, Tennessee death-row pris­on­er Pervis Payne (pic­tured) has moved to dis­qual­i­fy the Shelby County District Attorney General’s office from fur­ther par­tic­i­pa­tion in his case. Payne is await­ing a sched­uled December 13, 2021 court hear­ing to deter­mine whether he is inel­i­gi­ble for the death penal­ty because of intellectual disability. 

On October 15, 2021, Payne’s post-con­vic­tion coun­sel, Kelley Henry asked the 30th Judicial District Criminal Court in Memphis to sched­ule a hear­ing to deter­mine whether the Shelby County District Attorney General’s Office pos­sess­es a dis­qual­i­fy­ing con­flict of inter­est” in the case. Henry pre­sent­ed evi­dence that Jones worked as a cap­i­tal case staff attor­ney dur­ing a peri­od in which Payne’s chal­lenges to his con­vic­tion and death sen­tence were pend­ing in the Shelby County courts. Citing sworn tes­ti­mo­ny from District Court Judge Chris Craft, Payne’s motion alleges that Jones pro­vid­ed legal guid­ance to the judges of this crim­i­nal court regard­ing death penal­ty mat­ters when Jones was employed as a Capital Case Staff Attorney.” 

The facts as present­ly known cre­ate at least the appear­ance of impro­pri­ety that war­rants judi­cial inquiry,” Henry said in the motion. 

The issue in Payne’s case is sim­i­lar to one in the Texas case of death-row pris­on­er Clinton Young, in which a pros­e­cut­ing attor­ney simul­ta­ne­ous­ly served as a judi­cial clerk to the judge who presided at tri­al and in post-con­vic­tion appeals. The Texas Court of Criminal Appeals vacat­ed Young’s con­vic­tion on September 22, 2021 as a result of that conflict. 

Tennessee sched­uled Payne to be exe­cut­ed on December 3, 2020, despite sig­nif­i­cant evi­dence of his inno­cence and that he is inel­i­gi­ble for the death penal­ty because of intel­lec­tu­al dis­abil­i­ty. Governor Bill Lee grant­ed him a tem­po­rary exe­cu­tion reprieve on November 6, 2020, due to the chal­lenges and dis­rup­tions caused by the COVID-19 pan­dem­ic.” On May 10, Tennessee enact­ed a new statute that cured a defect in Tennessee law that had pre­vent­ed Payne and oth­er death-row pris­on­ers from chal­leng­ing their death sen­tences on the basis of intel­lec­tu­al dis­abil­i­ty, and Payne imme­di­ate­ly filed a peti­tion to vacate his death sen­tence under the new law. 

The court is expect­ed to rule on Payne’s dis­qual­i­fi­ca­tion motion before decid­ing whether the December 13 intel­lec­tu­al dis­abil­i­ty hear­ing can go forward. 

During his time as a cap­i­tal staff attor­ney, Jones pro­vid­ed judges with legal guid­ance on death penal­ty issues. Unlike Young’s case, how­ev­er, Jones says his staff attor­ney work did not include work on Payne’s case. 

In a hear­ing in which she pre­sent­ed the motion to the court, Henry told Judge Paula Skahan that the dis­tinc­tion is not dis­pos­i­tive. It’s not just a mat­ter of did the cap­i­tal case staff attor­ney draft an opin­ion, it’s what infor­ma­tion did the cap­i­tal case staff attor­ney learn dur­ing his or her tenure?,” she argued. 

There are just so many ques­tions we can’t answer at this junc­ture,” Henry told the court. There’s no way to unteth­er [Jones’] work from the Shelby County DA’s Office.” The con­flict, she said, requires a new DA’s Office to come in so they don’t have access to poten­tial­ly priv­i­leged infor­ma­tion, so the taint is removed from these pro­ceed­ings so we can move for­ward with the pub­lic hav­ing a sense of integri­ty over these hearings.” 

Payne is the first Tennessee death-row pris­on­er to file for relief under the state’s new intel­lec­tu­al dis­abil­i­ty law. If Judge Skahan decides to remove Shelby County pros­e­cu­tors from the case, she would have to appoint a spe­cial pros­e­cu­tor to han­dle the case, which would post­pone the start of that hearing. 

Payne, who was sen­tenced to death for the mur­ders of Charisse Christopher and her two-year-old daugh­ter, has con­sis­tent­ly main­tained his inno­cence and said he came upon the scene after they had been attacked. The vic­tims col­lec­tive­ly had been stabbed more than 80 times. DNA test­ing of evi­dence that had been with­held from the defense found the DNA from an uniden­ti­fied male, on the han­dle of the mur­der weapon. Consistent with his long-stand­ing asser­tion that he had touched the knife, Payne’s DNA was found else­where on the knife, but not on the han­dle. Judge Skahan said at the time that the pres­ence of the uniden­ti­fied man’s DNA was not suf­fi­cient to prove Payne’s innocence. 

Citation Guide
Sources

Katherine Burgess, Pervis Payne seeks to dis­qual­i­fy Shelby County District Attorney General’s Office from death penal­ty case, Commercial Appeal, October 152021 

Staff, Attorney of Pervis Payne calls for removal of Shelby County District Attorney’s Office from con­tro­ver­sial case, WMC Actions News 5, Memphis, October 152021 

Read Payne’s Motion to Disqualify the Shelby County District Attorney General’s office.