Updated on Nov. 23, 2021 at 11:38 a.m. ET: Today, the Shelby County Criminal Court formally set aside the death sentence of Pervis Payne days after the Shelby County district attorney conceded that Mr. Payne is a person with intellectual disability and therefore cannot be executed. The result of the D.A.’s concession is that Mr. Payne will need to be re-sentenced. A re-sentencing hearing will take place at a later date.
Pervis Payne has maintained his innocence for more than 30 years. Yet, despite having no prior criminal record and living with an intellectual disability, he was sentenced to death in Tennessee. Gov. Bill Lee granted Mr. Payne a temporary execution reprieve in November 2020, and a year later, Mr. Payne was officially removed from death row following the Shelby County district attorney’s concession that he is a person with an intellectual disability and therefore cannot be executed.
The Innocence Project joined Kelley Henry’s team at the Federal Public Defender’s Office in Nashville and the Milbank firm in filing a legal petition on July 22, 2020 for DNA testing of evidence in Mr. Payne’s case that had never been tested before and could help prove his innocence. And testing of some evidence was completed and submitted to the court in January 2021; however, key pieces of evidence mysteriously went missing before testing could be done.
Mr. Payne has always maintained his innocence and said that he was waiting for his girlfriend to return to her apartment in Millington, Tennessee, one afternoon in June 1987, when he discovered that her neighbor, Charisse Christopher, and her children had been brutally attacked. Mr. Payne, who lives with an intellectual disability, was shocked by the bloody scene.
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Despite his panic, he tried to help, but as soon as he saw the police arriving, he had a sinking feeling that he would be mistaken for the attacker. His fear soon became reality. Mr. Payne was arrested later that day, and the following February was convicted of murder and sentenced to death . More than three decades later, he is still on death row.
Here’s what you need to know about his case — including how the prosecution exploited Mr. Payne’s intellectual disability, hid evidence, and evoked racist stereotypes to convict him.
1. Pervis Payne has always maintained his innocence. For 33 years, Mr. Payne has consistently said he did not commit this crime and that he was an innocent bystander who happened upon the crime scene and tried to help.
2. Key evidence from the case that could identify the actual perpetrator of the crime — including the victim’s fingernail clippings — have gone missing. For decades, the evidence in this case went untested. Last year, the Shelby County Criminal Court ordered testing and on Jan. 19, 2021, Mr. Payne’s lawyer’s submitted the results of the testing to the court, which included male DNA from an unknown third party, but it was too degraded to identify an alternate suspect using the FBI’s database. However, the State is unable to account for the crucial pieces of evidence that have mysteriously gone missing. The victim’s fingernail clippings, which have now disappeared, were particularly crucial as the prosecution argued at trial that the victim had scratched her attacker.
3. Mr. Payne had no motive to commit such a crime. Mr. Payne, who lives with an intellectual disability, is described by those who know him as kind and respectful. He loved to make his sisters and mother laugh and helped his father out at his church in any way he could. In the absence of a clear motive, the prosecution argued that Payne had taken drugs, looked at a Playboy magazine, and was looking for sex when he approached the victim. They argued that he attacked her after she rejected him. But there is no evidence that Payne had used drugs that day and he did not have a history of drug use, nor a criminal record.
4. The prosecution employed racial stereotypes to portray Mr. Payne, a Black man, as a hypersexual and violent drug user, who attacked a white woman. Shelby County, where Mr. Payne’s trial took place, is among the 25 counties with the most recorded lynchings between 1877 and 1950 in the United States. The county’s history is deeply rooted in slavery and deals with its legacy to this day. Knowing this, the prosecution repeatedly highlighted the victim’s “white skin” when referring to parts of her body during the trial, while painting a portrait of Mr. Payne as a drug-using, aggressive, hypersexual Black man.
5. The use of racial stereotypes is known to contribute to wrongful conviction and sentencing. Innocent Black people are seven times more likely to be wrongfully convicted of murder than innocent white people, according to the National Registry of Exonerations. Studies have found that the victim’s race also influences the likelihood of the death sentence being applied. Nearly 300 Black people accused of murdering white people have been executed since 1976 — approximately 14 times more than the number of white people executed for murdering white people — the Death Penalty Information Center reported.
6. Mr. Payne lives with an intellectual disability, which means it is unconstitutional to execute him. Growing up Mr. Payne struggled in school and, despite his best efforts, was not able to graduate. His teachers say he put in a lot of effort, but had difficulty learning to read, spell, and do math. Mr. Payne’s family say he is not able to follow complicated instructions, including driving to new places. Growing up, he had trouble with chores like cooking and doing laundry, and needed help feeding himself until he was 5.
Because of his disability, Mr. Payne was not able to fully participate in his defense and was not a strong witness on his own behalf. At the time of his trial, Mr. Payne’s disability was not recognized, but doctors have since confirmed through testing that Mr. Payne has an intellectual disability.
7. Tennessee signed a law that protects Mr. Payne from execution due to his intellectual disability, under the Supreme Court ruling on Atkins vs. Virginia.
While the Tennessee Supreme Court has acknowledged that the State has “no interest” in executing a person with intellectual disability, and Mr. Payne has presented undisputed evidence of his intellectual disability, there is no mechanism at this time for him to present his intellectual disability claim.
The chair of the Tennessee Black Caucus of State Legislators, Rep. G. A. Hardaway, filed a bill on Nov. 4, 2020 that would create a process for such claims to be presented in court, enabling Mr. Payne and others to present their intellectual disability claims. In April, both chambers of the Tennessee legislature passed bi-partisan legislation to modernize the state’s intellectual disability law and prevent the unconstitutional execution, and in May Gov. Lee signed the bill into law.
Shortly thereafter, attorneys for Mr. Payne filed a petition under the new procedure in Shelby County Criminal Court stating that Mr. Payne, as a person with an undisputed diagnosis of intellectual disability, is categorically barred from execution.
8. There are other suspects. The victim’s ex-husband had a history of abusive behavior, including physically, mentally, and emotionally abusing the victim during their marriage. At the time, investigators excluded him as a suspect because he was serving a sentence for aggravated assault at Fort Pillow State Penitentiary, a minimum security prison, at the time of the murders. However, an employee of the prison has since admitted that it was common for minimum security inmates to leave the prison during the day without repercussions, meaning it would have been possible for him to visit the victim and potentially perpetrate the crime while serving his sentence.
Additionally, a man was seen running from the crime scene shortly before Mr. Payne discovered Christopher in her apartment. Both Mr. Payne and another eyewitness also saw this man.
Here’s how you can help Pervis and his family fight for justice:
- Join the team to stop the execution.
- Urge Gov. Lee to grant Pervis Clemency
- Purchase a limited edition Pervis T-shirt or crewneck.