Pervis Payne Seeks Hearing on Whether Shelby County Prosecutors Should be Recused From His Case Based on Trial Prosecutor’s Possible Conflict of Interest

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 30^th 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.