Sunday, December 12, 2021

Pervis Payne: Tennessee; Bulletin: Resentencing hearing tomorrow. (Monday 13 December): ABC 24 explains what's at stake. (For background, read commentary at link below);

STORY: "Here's what you need to know before Pervis Payne's resentencing hearing," ABC 24 (Reporter Nick Papadimas) reports, published on December 10, 2021.

SUB-HEADING: The Court will decide whether  Payne's two life sentences and a related 30-year sentence will run at the same time - or consecutively.

GIST: "Pervis Payne's attorney, Kelley Henry, will be back at Shelby County Criminal Court on Monday for Payne's resentencing hearing.

Payne, a Black man with an intellectual disability, was accused of killing a white woman and has maintained his innocence for 34 years.

After the Shelby County District Attorney conceded that Payne has an intellectual disability and couldn't be executed, Payne was taken off death row.

The court will decide whether Payne's two life sentences and a related 30-year sentence will run at the same time or consecutively. 

Tennessee law favors concurrent sentencing and places the burden on the State to prove consecutive sentencing is necessary to protect the public.

If the court orders that the sentences will be served concurrently, Payne would be eligible for parole after six years. If the court orders that the sentences will run consecutively, he wouldn't be given parole until he's 85. 

The court doesn't have the authority to grant Payne parole. Only the parole board can do that. 

The hearing is scheduled to begin at 9 a.m."

The entire story can be read at:


BACKGROUND: Read Tennessean Guest Columnist  Carol Tures' commentary on why the Pervis Payne case should lead Tennessee to abolish death penalty, at the link below: (Carol Tures, founder of El Pasoans Against the Death Penalty in 1999, has been active in Tennessee in opposing the death penalty since her move to Nashville in 2007.)

"The deadly COVID-19, ironically, has saved the life of an African-American man with an intellectual disability.We were within 27 days of killing him, execution date: December 3, 2020. All executions were suspended Nov. 6, 2020, because of COVID-19.   

Pervis Payne has the mental capacity of a “10-year-old.” He had been on death row at Riverbend Prison in Nashville for the past 34 years for killing a white woman and her child.  

On Nov. 18, the prosecuting attorney in Memphis officially recognized what experts knew: Pervis Payne is intellectually disabled and does not belong on death row. 

The U.S. Supreme Court ruled it unconstitutional to execute persons with this disability. Period. They are at special risk for wrongful conviction.

Last spring, our legislature and governor changed Tennessee law to conform to the SCOTUS ruling. Prisoners like Payne will be able to join the prison’s general population. 

Payne, with no offenses in all his 54 years, went to death row. 

Facts of the case:

On June 27, 1987, at her apartment in Millington, near Memphis, Charisse Christopher and her 2-year-old daughter were viciously stabbed to death more than 80 times. Her 3-year-old son, also stabbed, survived. The jury, unaware of Payne’s intellectual disability, said he was guilty beyond a reasonable doubt. 

Such verdicts must be unanimous, therefore, all jurors were "death-qualified" — none opposed to the death penalty. According to the polls, half of us would not qualify. The cost of the trial, possibly $500,000, was at stake. 

Pervis’s performance at trial as a 20-year-old man with the mind of a 10-year-old, was off-putting, in the face of pointed questioning. 

The prosecution stated that Payne, high on drugs, made advances to the victim, and stabbed her when she rebuffed him. She was white, he is Black. The prosecution pointed out her “white skin.” Furthermore, Payne, shirt bloodied, had run from the scene. 

Payne testified that he was waiting for his girlfriend to come home.  The door to the apartment opposite hers was ajar. He heard “sounds” of distress and was terrified to find a woman, still alive, with a knife in her neck.

He tried to pull out the knife because he was brought up to “help.” He tried to phone, but, in his panic, forgot the number. When he saw the police coming, he grabbed his sack of beer cans, but they fell out. He lost his baseball cap which had barely fit over his afro hairstyle. He picked up his over-night bag at the top of the stairs and ran away, afraid that they would blame him. They did.  

The police assumed he was guilty and did not do a thorough investigation of the crime scene.

 The prosecution claimed that the 2-year-old’s arm was found thrust through the hole in the back of Pervis’s baseball cap, but crime scene photos contradict that claim and witnesses testified that they moved the bodies and carefully arranged them before taking the photo.

 The hat had no blood on it, which should have been there because of her injuries.

Beer cans bearing Pervis’s fingerprints were neatly arranged on a table. 

Prosecutor’s notes, obtained years later, indicate that the prosecution wondered if the cans had been planted. 

Photos of the crime scene do not appear to match each other.  

The police did not mention suspicion of drugs in their extensive report of that day and Payne had zero history of drug use. 

His mother begged the police to test him for drugs, but it was denied.  

The investigation did not focus on Charisse’s ex-husband, known for violence, who had a brother on death row in Florida for a sexually-motivated murder.

Revisiting the case helped stay of execution ruling:

Since 2019, Pervis has a new legal team. Kelley Henry asked for DNA testing of the victim’s fingernail clippings—Charisse bent back her nails fighting her assailant. That evidence was listed as available July, 2020, but by Sept. 2020, it was mysteriously missing, with no explanation.  

Pervis’s DNA was found on the hilt of the knife, consistent with Pervis’s testimony. Pervis was excluded as the contributor of the male DNA found on the handle and blade. Whoever used the knife to make 80 stab wounds would have left DNA on the handle. 

Weren’t there appeals? Appeals judges normally read a case summary, they do not retry it. They assume that the person is guilty and they merely scrutinize points of law. 

The judge dismisses “harmless errors” if the judge thinks they would not have changed the verdict. 

Why is Pervis’s case important to us? Could the killer be at large? Also, taxpayers paid for the hugely expensive trial and appeals---this could have supported crime prevention instead. 

What if any of us should come upon a crime scene, or the death of a family member? We could possibly land on death row, due to human frailty built into the system. 

Michigan in 1846 abolished the death penalty after an innocent Detroit man was hanged in Windsor.

 Former Supreme Court Justice Sandra Day O’Connor, addressing Minnesota lawyers in 2001, observed that an innocent person will never be executed in Minnesota because Minnesota does not have the death penalty. “(You), must breathe a big sigh of relief every day.” 

The 27 states with the death penalty use poisoning, firing squad, gas chamber or electric chair. This is not who we are.

I implore you and your family and friends to contact two persons today: your Tennessee State Senator and Representative.

Please ask them to remove two words, “death penalty” from our law books and thereby abolish it — leaving “life” and “life without parole.” 

Each one has a website with an email form.  To find their No computer?Give your address to the main reference desk, Nashville Public Library, 615-862-5800, for names and contact information. "


PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic"  section which focuses on recent stories related to Dr. Charles Smith. It can be found at: Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: Please send any comments or information on other cases and issues of interest to the readers of this blog to:  Harold Levy: Publisher: The Charles Smith Blog;
FINAL WORD:  (Applicable to all of our wrongful conviction cases):  "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions.   They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;

FINAL, FINAL, FINAL WORD: "It is incredibly easy to convict an innocent person, but it's exceedingly difficult to undo such a devastating injustice. 
Jennifer Givens: DirectorL UVA Innocence Project.