New Filing: Pervis Payne Seeks to Stop Execution Until Tennessee Provides a Procedure to Hear his Intellectual Disability Claim

U.S. Supreme Court banned the execution of people with intellectual disability; Tennessee has, so far, failed to create a process for showing his diagnosis.

(Nashville, Tennessee) Attorneys for Pervis Payne yesterday filed a complaint in the U.S. District Court for the Middle District of Tennessee to prevent Tennessee from carrying out his execution on Dec. 3, 2020 until the State creates a procedure to adjudicate his claim that, as a person with intellectual disability, his execution would be unconstitutional. Mr. Payne had no prior criminal history before being convicted of a capital crime and has maintained his innocence for more than 30 years. The State of Tennessee has never disputed that Mr. Payne has an intellectual disability. 

Read Mr. Payne’s Complaint here. He is represented by attorney Kelley Henry.

 As Mr. Payne’s complaint details, the Tennessee Supreme Court held in 2016, in Mr. Payne’s own case, that Tennessee has no interest in executing people with intellectual disability and urged the Legislature to provide a process for people with intellectual disability to present their claims in court and determine their eligibility for execution. To date, neither the Tennessee Supreme Court nor the General Assembly has created a procedure for Mr. Payne and others like him.

Rep. G. A. Hardaway, the Chair of the Tennessee Black Caucus of State Legislators, recently announced that the Caucus will file a bill to enable Mr. Payne and others to present their claims in state court on “day one” of the next legislative session. The first day of the next session is after Dec. 3, 2020, Mr. Payne’s scheduled execution date. (Complaint at pp. 1, 3.) 

“The U.S. Supreme Court banned all executions of people with intellectual disability. The Court recognized that people with intellectual disability present ‘a special risk of wrongful execution’ because they have trouble assisting their attorneys and make poor witnesses on their own behalf. This is precisely what happened to Pervis Payne, leading to his wrongful conviction,” said Katie Powers, a past president of the Tennessee Disability Coalition. “Tennessee must not execute Mr. Payne without giving him a process for presenting the overwhelming evidence of his intellectual disability in court.” 

Mr. Payne’s complaint states: “Despite twice decreeing, ‘Tennessee has no business executing persons who are intellectually disabled,’ the Tennessee Supreme Court has shut the door to every attempt by Mr. Payne to adjudicate his claim. Mr. Payne filed motions to reopen, a petition for writ of error coram nobis, and a petition for declaratory judgement. Each attempt has been denied for procedural reasons.” (Complaint at p. 2.)

In 2019, Dr. Daniel Martell, a prominent forensic psychologist, conducted the most comprehensive testing and examination of Mr. Payne to date. Dr. Martell concluded that Mr. Payne has an intellectual disability and that he meets all of the criteria for intellectual disability under Atkins v. Virginia, the 2002 U.S. Supreme Court decision that bars the execution of people with this diagnosis. Dr. Martell was the expert for the State of Virginia in Atkins and both the defense and the government have relied on Dr. Martell’s expert opinion in hundreds of cases. In fact, the State of Tennessee retained and relied on Dr. Martell’s diagnosis in two other capital cases. (Dr. Martell’s report is attached as Exhibit A to Mr. Payne’s complaint. Dr. Daniel Reschly’s report, which also concluded that Mr. Payne had intellectual disability in 2010, is attached as Exhibit B.)

As Dr. Martell’s report details, Mr. Payne received an IQ score of 72 and a lower score of 68.4 when corrected for outdated testing norms. His reading skills are in the bottom 5th percentile for his age, his math skills are below the bottom 0.1 percentile, and his memory skills are in the bottom 1st percentile. Dr. Martell also found his language functioning was significantly impaired, with an inability to find words for things, an inability to pronounce words correctly, and neurodevelopmental stuttering. Dr. Martell found additional evidence of intellectual disability and made his conclusion based on standards set by the American Association for Intellectual and Developmental Disabilities, the American Psychiatric Association, and Tennessee law. (Complaint at pp. 2, 7, 8, 9.)

From an early age, family, friends, teachers and fellow students recognized that Mr. Payne had intellectual disability. He had trouble learning to read, do math, and follow instructions and was unable to finish high school, although he worked hard and never presented any disciplinary problems. At home, he was not able to perform chores like ironing his clothes or helping younger siblings with their homework. Mr. Payne’s next door neighbor recalled that he could not feed himself until he was five. (Complaint at pp. 10-12.)

Mr. Payne was 20 years old and waiting for his girlfriend to come home when he heard noises across the hall and went to help. He came upon a crime scene where a woman and her daughter had been fatally stabbed and her son had been stabbed, but survived. Because Mr. Payne was at the scene, the police zeroed in on him and failed to investigate other suspects, including another man Mr. Payne saw fleeing the building and the victim’s violent ex-husband, according to the Innocence Project’s petition on Mr. Payne’s behalf. 

Mr. Payne had never been arrested before, as either a juvenile or an adult, and nothing in his background suggested that he could have committed this crime. He was convicted after the prosecution played upon racial fears and stereotypes about Black men taking drugs and looking for white women to sexually assault, going so far as to refer to his dark hand and the victim’s “white skin.” (Innocence Project Petition at pp. 14-15.) 

On Sept. 16, 2020, at 9 a.m. CST, the Shelby County Criminal Court will issue a decision on Mr. Payne’s request to have crime scene evidence tested for DNA. 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. Numerous pieces of evidence have never been tested for DNA, including a knife, a tampon, and bloodstained items. 

The racial stereotyping at Mr. Payne’s trial and his strong innocence claim has led a large coalition of legal, legislative, faith, and community groups to call for DNA testing. The Ben F. Jones Chapter of the National Bar Association is spearheading this coalition, which includes the Tennessee Black Caucus of State Legislators, Memphis Chapter of the NAACP, the Memphis Bar Association, 100 Black Men of Memphis, Inc., National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Memphis Interfaith Coalition for Action and Hope (MICAH), Church of God in Christ (COGIC) National General Board Member Bishop Brandon Porter, COGIC Bishop Linwood Dillard, Jr. and COGIC Bishop David Hall, Sr., Hope Fellowship Church Pastor Dr. Timothy Jackson, Jr., Carlos Moore, President-elect of the National Chapter of the National Bar Association, and Just City.