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Payne’s Wrongful Conviction: Racism, Hidden Evidence, and Intellectual Disability

— August 12, 2020

Prosecutors relied on racist stereotypes about Black men as hypersexual, drug using super-predators — using drugs, looking for sex, and attacking white women.

On July 24, 2020, we shared Pervis Payne’s story and the Innocence Project’s efforts on his behalf. Pervis Payne is a Black man living with intellectual disability on Tennessee’s death row. Mr. Payne had no prior criminal history before being convicted of a capital crime and has maintained his innocence for more than 30 years. On December 20, 2019, Mr. Payne’s attorneys found hidden evidence at the Shelby County Criminal Court clerk’s office that the State withheld and has never been tested for DNA. He is scheduled for execution on December 3, 2020.

On July 22, 2020, the Innocence Project, Milbank LLP, and Nashville attorney Kelley Henry filed a Petition for Post-Conviction DNA Analysis in the Shelby County Criminal Court, which can be viewed here:

The crime scene evidence indicated that the crime could have been a crime of rage by someone close to the victim, but police focused exclusively on Mr. Payne, who was the boyfriend of the victim’s neighbor and who found the victims’ bodies. Nothing in Mr. Payne’s background or behavior suggests that he is capable of such a crime. There was no evidence that Mr. Payne used drugs and he had no criminal history as a juvenile or adult. (Petition at pp. 6, 12-13.)

However, at trial, the prosecution relied on racial stereotypes and fears, arguing that Mr. Payne, a black man, had taken drugs and was looking for sex, and attacked and killed Charisse Christopher, a white woman, her two-year-old daughter, and non-fatally stabbed her four-year-old son. (Petition at pp. 1, 12, 15.) To make up for a lack of motive, the prosecution argued that Ms. Christopher had been sexually assaulted, a claim that was inconsistent with the crime scene, where she was discovered fully clothed. As Mr. Payne sat at the defense table, the prosecution reminded the jury of Ms. Christopher’s “white skin.” (Petition at pp. 14-15.)

Evidence from the crime scene that has never been subject to DNA testing includes a comforter, sheets, and pillow with bloodstains that were recently discovered in the court clerk’s office. Numerous other pieces of evidence from the crime scene include a tampon, bloodstained clothing, a weapon, fingernail clippings, and potentially a rape kit. Mr. Payne’s defense team was unaware that some of this evidence existed until the very end of last year. (Petition at pp. 10-11.)

The newly discovered hidden evidence contradicts the State’s case against Mr. Payne in several important ways. For example, the State’s theory was that the crime occurred only in the kitchen. This does not explain newly discovered bloody bedclothes. There are other suspects, including the victim’s violent ex-husband and another man seen fleeing from the scene, according to the Innocence Project’s petition (Petition at pp. 52-53.)

The Innocence Project’s petition also describes three cases similar to Mr. Payne’s, where bystanders were convicted after coming upon a murder scene and later had their convictions overturned as a result of DNA testing. (Petition at pp. 41-43.)

Mr. Payne was only 20 years old at the time of the crime and intellectually disabled, although that fact was not recognized at the time of the trial. He has an IQ of 72 and other evidence of intellectual disability. One of the main reasons the U.S. Supreme Court barred the execution of people with intellectual disability in Atkins v. Virginia (2002) is that they present a special risk of wrongful conviction. Mr. Payne was convicted, in part, because he was unable to assist his attorneys in making his defense and he made a poor witness on his own behalf. (Petition at pp. 9-10.)

Image of DNA by, CC0.
Image of DNA by, CC0.

DNA testing, which was unavailable at the time of Mr. Payne’s trial and has not been performed any time since, could provide scientific proof of the assailant’s identity and exonerate him.

Move ahead to July 30 when Shelby County District Attorney Amy Weirich opposed Pervis Payne’s petition for DNA testing. Commenting on that opposition, Kelley Henry, Supervisory Assistant Federal Public Defender Nashville, Tennessee said:

“The District Attorney is wrong to oppose DNA testing in Pervis Payne’s case. She is wrong on both the facts and the law. On the facts, the DA’s assertion that the wrong bag of evidence was handed to Mr. Payne’s attorneys in December 2019 raises more questions than answers. Even putting the bedding aside, there is abundant evidence from the crime scene that could definitively prove that Mr. Payne is innocent. There is a long line of bungling in this case, leading to Mr. Payne’s wrongful conviction. The police tampered with evidence at the crime scene. They moved the victims’ bodies. If the victim’s ex-husband’s DNA is found on any piece of evidence, it would exonerate Mr. Payne. On the law, the DA is relying on a case that was overruled by the Tennessee Supreme Court in 2006. There is no legal barrier to testing in Mr. Payne’s case. The DA should not be citing out of date, overruled cases. It’s now more important than ever that this case get a full hearing before a judge.”

On August 7, attorneys for Pervis Payne, filed his Reply Brief in Support of Petition for Post-Conviction DNA Analysis. Mr. Payne is asking the Criminal Court for Shelby County to order DNA testing of more than a dozen items of crime scene evidence that have never been subjected to DNA analysis and to allow comparison of the DNA and fingerprint evidence with the FBI databases. Mr. Payne also requests a hearing before a judge so that his expert witness can demonstrate how DNA could establish Payne’s innocence.

“The District Attorney’s stance that DNA testing is not relevant is indefensible. If someone else’s DNA is on the never-tested evidence, it could clear Mr. Payne and identify the actual perpetrator,” said Kelley Henry, one of Mr. Payne’s attorneys.

The never before tested evidence includes a knife (the murder weapon); fingernail scrapings (which likely contain biological material from the perpetrator given the nature of the struggle); a tampon (that police claim they did not see at the crime scene initially, but found two days later and which became the centerpiece of the prosecution’s case); and numerous other bloodstained items from the crime scene.

Mr. Payne previously requested DNA testing of different evidence (not the items listed above). Some of that evidence (vaginal swabs) was destroyed by the State. Payne’s 2006 request was denied based on case law that has since been overruled. In 2011, in Powers v. State, the Tennessee Supreme Court “directed that a post-conviction court must presume that testing results would yield the most favorable test results that are possible in light of the evidence sought to be tested.” (Reply Brief at p. 4.)

Mr. Payne has maintained his innocence for more than 30 years. With no motive for the crime, prosecutors relied on racist stereotypes about Black men as hypersexual, drug using super-predators — using drugs, looking for sex, and attacking white women. The beloved son of a church Elder, Mr. Payne had no history of drug use or criminal activity, as either an adult or juvenile, and nothing in his background suggested that he was capable of committing this crime.

For more information about Pervis Payne’s innocence case, please visit

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