Updated on Aug. 5, 2020 at 5:00 p.m. ET: On July 30, Shelby County District Attorney Amy Weirich announced that her office is opposing DNA testing of evidence in Pervis Payne’s case. Weirich also said that evidence presented to Payne’s legal team in 2019 — previously referred to in this article as “hidden evidence” — is actually from another case and was shown to Payne’s team in error. This article has been updated to reflect this new information.
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 is set to be executed in Tennessee on Dec. 3, 2020.
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 for DNA testing of evidence in Payne’s case that has never been tested before and could help prove his innocence.
Payne 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. 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. 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 Payne’s intellectual disability, hid evidence, and evoked racist stereotypes to convict him.
1. The evidence in the case has never been tested for DNA, which could identify the actual perpetrator and prove Payne’s innocence. For 33 years, 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. The presence of another person’s DNA on the murder weapon or other critical evidence would support what Payne has been saying all along. This testing could be completed in 60 days.
2. The Shelby County District Attorney Amy Weirich is opposing DNA testing in the case. In 2019, Payne’s legal team was shown evidence said to be from Payne’s case for the first time. Last week, Weirich said some of the evidence is from another case and was erroneously shown to Payne’s attorneys. However — despite confirming that the actual evidence from Payne’s case still exists — Weirich is still opposing all DNA testing in Payne’s case. Her argument against DNA testing is based on a 2006 decision that was overruled by the Tennessee Supreme Court in 2011.
3. The Shelby County District Attorney’s Office has a history of standing in the way of DNA testing in cases with questions of innocence. This is not the first time Weirich’s office has opposed DNA testing in a case with innocence claims using the same legally flawed arguments. Sedley Alley was executed by the State of Tennessee in 2006 after being denied DNA testing of underwear found at the crime scene that was believed to belong to the perpetrator. His daughter, April Alley, continues to seek the truth in his case. Last year, the Innocence Project filed a petition for posthumous DNA testing in Sedley’s case, which the District Attorney’s Office opposed.
4. Payne had no motive to commit such a crime. 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.
5. The prosecution employed racial stereotypes to portray Payne, a Black man, as a hypersexual and violent drug user, who attacked a white woman. Shelby County, where 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 Payne as a drug-using, aggressive, hypersexual Black man.
6. 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.
7. Payne lives with an intellectual disability, which means it is unconstitutional to execute him. Growing up 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. 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, 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, Payne’s disability was not recognized, but doctors have since confirmed through testing that Payne has an intellectual disability.
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 Payne discovered Christopher in her apartment. Both Payne and another eyewitness also saw this man.