GIST: Kelley Henry's statement: "Governor Lee was right to delay Pervis Payne's execution due to the Covid-19 crisis. Bringing witnesses into the prison is unsafe for them, the staff, and the prisoners. This additional time will give the Tennessee Legislature the opportunity to pass bi-partisan legislation to allow Mr. Payne's and others' claims of intellectual disability to be heard in court.
"The U.S. Supreme Court and the Tennessee Supreme Court has held that the execution of people with intellectual disability is unconstitutional. Currently, there is no process for people with intellectual disability in Mr. Payne's procedural posture to have their claims heard in court. We are grateful to Rep. G.A. Hardaway and the Tennessee Black Caucus of State Legislators for filing bi-partisan legislation to create such a procedure."
"This additional time will also allow us to investigate Mr. Payne's strong innocence claim, together with the Innocence Project. We are grateful to the 150 faith, legal, legislative, and community groups in Memphis and across the state that support clemency for Mr. Payne. Together with Mr. Payne's family, we will continue the fight to prove Mr. Payne's innocence."
BACKGROUND ON PERVIS PAYNE'S CASE: "Pervis Payne’s case has all the ingredients for a wrongful conviction and death sentence.
He is a Black man with intellectual disability who was accused of murdering a white
woman in a county with a long history of racial violence and biased criminal justice, the
prosecution played to racist themes and withheld exculpatory evidence, and, for years,
the State blocked DNA testing of more than a dozen items of evidence that could help
prove Mr. Payne’s innocence. Some of the most important pieces of evidence -- that
could exonerate Mr. Payne -- have mysteriously vanished from the evidence room.
Pervis Payne must not be executed before he has an opportunity for his claims of
intellectual disability and innocence to be fully and fairly heard. A powerful coalition
of 150 legal, legislative, faith, and community groups in Memphis and across the state
strongly supports Mr. Payne’s request for clemency, which is currently pending with
Tennessee Governor Bill Lee.
INTELLECTUAL DISABILITY AND A PENDING LEGISLATIVE FIX:
Pervis Payne is indisputably a person living with intellectual disability and suffers from
neurocognitive impairment. His execution, scheduled for December 3, 2020, would
therefore be unconstitutional. Educational records, expert findings, and administered tests
confirm Mr. Payne’s intellectual challenges. Recent exams by Dr. Daniel Martell
concluded that his IQ on the WAIS-IV scale is 72 with a functional score of 68.4.
Overall, his diagnosis of intellectual disability is consistent with standards set by the
American Association of Intellectual and Developmental Disabilities and the American
Psychiatric Association. The state has never denied or challenged that Mr. Payne is
intellectually disabled.
In Atkins vs. Virginia, decided in 2002, the U.S. Supreme Court found that executing
people with intellectual disability violates the Eighth Amendment ban on cruel and
unusual punishment. The Court explained that persons with intellectual disability are a
“special risk for wrongful execution” and recognized that intellectually disabled
defendants are often unable to assist their lawyers and make poor witnesses. These
concerns played out in Mr. Payne’s case.
The Tennessee courts have held that they have no power to hear Mr. Payne’s claim
and urged the legislature to create a legislative fix for persons like Mr. Payne who
are denied an opportunity to present a claim that he is intellectually disabled and
thus constitutionally ineligible for the death penalty because of procedural
technicalities. The Tennessee Supreme Court has acknowledged that Mr. Payne
presented undisputed evidence of intellectual disability and that the state has “no interest”
in executing a person with intellectual disability but concluded that no procedural
mechanism exists for Mr. Payne to present his Atkins claim. Although the state supreme court urged the Tennessee Legislature to create a mechanism
for prisoners like Mr. Payne to raise an Atkins claim, the legislature has not done so. The
legislature is out of session and is unable to act prior to the December 3, 2020 execution
date. The Chair of the Tennessee Black Caucus of State Legislators, Rep. G. A.
Hardaway, has promised to file a bill to enable Mr. Payne and others to present
their intellectual disability claims in state court on “day one” of the next legislative
session.
RACIAL STEREOTYPES"
Prosecutors relied on powerfully prejudicial racist tropes of black male hypersexuality
and drug abuse to convict Pervis Payne. Police and prosecutors relied on racial
stereotypes and ignored and even suppressed evidence inconsistent with their theory.
Prosecutors argued that Mr. Payne, allegedly high on drugs and alcohol – although he had
no history of substance use – made an advance on the victim, and when she refused, he
stabbed her to death. The prosecutor further played to racial stereotypes by repeatedly
mentioning the victim’s “white skin.”
Mr. Payne was tried in Shelby County, which has a long history of systemic racism and
lynching. The crime occurred in Millington, Tennessee, on the border of Shelby and
Tipton counties. Tipton County, where Mr. Payne and his family are from, also has a
history of racial violence and lynching. Mr. Payne grew up hearing stories of white men
torturing and murdering black men. The KKK was active in Tipton County and
Millington during the time of this trial.
NO PRIOR CRIMINAL HISTORY:
Mr. Payne has no prior criminal record or history of violence. Nothing in his background
or upbringing suggests that he is capable of committing this crime. Mr. Payne had no
prior contact with the legal system and has been a model prisoner since his wrongful
incarceration. Despite academic challenges while in school, he never faced any
disciplinary issues. Mr. Payne’s prison record remains unblemished.
Mr. Payne’s family has stood by his side, fighting for justice all these years. The Payne
family has largely been ignored and marginalized by a system biased against African
Americans. Mr. Payne’s mother and older sister have passed away. His father, a minister,
travels as often as he can to Nashville to be with his son even though he has Parkinson’s
disease. Mr. Payne’s sister, Rolanda, is tirelessly working to bring the injustice of her
brother’s case to light.
INNOCENCE CLAIM AND MISSING EVIDENCE
Pervis Payne has a strong innocence claim. He is awaiting the results of DNA testing of
more than a dozen items of evidence that the Shelby County Criminal Court ordered on
September 16, 2020. The DNA testing, which had been denied for years, could help
exonerate him. He has maintained his innocence for more than 30 years.
Mr. Payne had no history of violence, had never been arrested, and was just 20 years old
at the time, visiting his girlfriend who lived across the hall from the victim when he heard
noises and wanted to help. He was overwhelmed at the horrific crime scene and panicked.
“I saw the worst thing I ever saw in my life and like my breath just had—had tooken—
just took out of me ... she was looking at me,” Mr. Payne testified in court. He did not
know the victim nor did he have a reason to attack her, leaving him no clear motive to
commit this crime.
Inexplicably, the State is unable to account for important missing pieces of forensic
evidence, claims no knowledge of their whereabouts, and cannot explain why the
evidence was not meticulously preserved. More than a dozen items of evidence that
have never been subjected to DNA analysis are currently being tested. Test results are
expected back before his scheduled execution on December 3, 2020. The never before
tested evidence includes a knife, a tampon, and bloodstained items.
Shockingly, some of the most significant pieces of evidence in the case, including
fingernail scrapings that should contain the DNA of the true perpetrator, are mysteriously
missing. The fingernail clippings would be especially significant because the prosecution
argued at trial that the victim scratched her assailant.
The prosecution’s theory at trial was based on speculation and was inconsistent with the
evidence, making it even more important to test the available evidence for DNA.
Prosecutors argued that Mr. Payne was high on drugs, though he had no history of drug
use and his mother begged the police to perform a drug test on her son after his arrest,
which they refused.
Prosecutors argued that Mr. Payne became “sex crazed” after looking at a Playboy
magazine, though there is no evidence the victim was sexually assaulted or that Mr.
Payne had sex with her, nor is there any evidence that looking at magazines like Playboy
leads to sexual assault or other violence. And in fact, it was Jet Magazine, not Playboy,
the Mr. Payne and his cousin were looking through that day.
The State withheld evidence that the victim’s boyfriend admitted he had consensual sex
with her within hours of her murder and used the omission to bolster its false theory that
Mr. Payne had sexually attacked the victim.
In closing arguments, the prosecutors claimed that the victim had semen in her vagina,
suggesting that Mr. Payne had sex with her. What the jury did not know, because the
state withheld this evidence, was that the victim had sex with her then-boyfriend, Darryl
Shanks, within hours of the murders. Mr. Payne and his legal team did not know about
Mr. Shanks’ admission until his post-conviction hearing.
The key piece of evidence that the state relied on for sexual motive is a tampon that they
claimed Mr. Payne pulled from the victim. But no tampon was collected when the crime
scene was processed. Police claimed they found the tampon two days later when they
returned to the crime scene.
There are other more plausible suspects, including the victim’s ex-husband Kenneth
Christopher, who had a lengthy criminal record and history of physically, mentally,
emotionally abusing the victim, according to a petition filed by the Innocence Project.
The victim’s divorce petition against Mr. Christopher cited cruel and inhumane treatment
and neglect.
The Shelby County District Attorney General’s office has one of the worst reputations in
the country. It has repeatedly been found to have suppressed evidence favorable to the
accused. The current DA was publicly sanctioned for misconduct in a criminal case.
WIDESPREAD SUPPORT FOR CLEMENCY
A powerful coalition of 150 Tennessee faith, legal, legislative, and community groups
in Memphis and across the state supports clemency for Mr. Payne. The coalition
includes: more than 120 congregations from Christian, Muslim, and Jewish
denominations; Memphis Interfaith Coalition for Action and Hope (MICAH); Tennessee
Conservatives Concerned About the Death Penalty; Tennessee Black Caucus of State
Legislators; Tennessee State Conference NAACP; the NAACP Memphis; the Ben F.
Jones Chapter of the National Bar Association; the Memphis Bar Association; the
Tennessee Alliance for Black Lawyers; Witness to Innocence, an organization of people
exonerated from death row; Tennessee Disability Coalition; and Just City Memphis."
The entire backgrounder can be read at:
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http://www.smithforensic.blogspot.com
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