Tennessee Set To Execute Intellectually Disabled Black Man In Killing Of White Woman Even Though Innocence Questions Persist

Attorneys say the prosecution’s theory of the murder case was ‘concocted out of whole cloth’ and based on ‘outdated racial stereotyping.’

For more than 30 years, Pervis Payne has told the same story about what happened on June 27, 1987. 

It’s the story he told in court when he testified at his capital murder trial.  

On that Saturday afternoon, Payne, then 20, was waiting for his girlfriend, Bobbie Thomas, to return from a trip. They had plans to spend the weekend together in Millington, Tennessee, a small town in Shelby County, and Payne had been checking in at Thomas’s apartment building all day. But when he arrived at the Hiwassee Apartments around 3 p.m. he felt that something was off. He saw a man come running past him, bounding down the stairs as change and papers fell from his pockets. After picking up some of the scattered items, Payne walked to the building’s second floor, where he noticed the door to the apartment across the hall from Thomas’s unit was open. After hearing sounds of distress inside, Payne announced that he was coming in. There, Payne found Charisse Christopher bleeding profusely with a knife protruding from her throat.

“I saw the worst thing I ever saw in my life and like my breath just had—had tooken—just took out of me … she was looking at me,” he later testified in court. “She had the knife in her throat with her hand on the knife like she had been trying to get it out and her mouth was just moving but words had faded away. And I didn’t know what to do.”

Overcome by the horrific scene, Payne fumbled around trying to help. He pulled the knife from Christopher’s body and checked on her two young children. As he ran from the apartment in hopes of flagging down the police for help, he saw officers arriving. 

“As soon as I left out the door I saw a police car, and some other feeling just went all over me and just panicked, just like, oh, look at this,” Payne testified. “I’m coming out of here with blood on me and everything. It going to look like I done this crime.” 

Payne was right: Later that day, he was arrested for Christopher’s murder. “Man, I ain’t killed no woman,” he told the arresting officers. 

A medical examiner found that Christopher, 28, was stabbed 41 times, while her 2-year-old daughter, Lacie Jo, had been stabbed nine times. Both died. Christopher’s 3-year-old son, Nicholas, was also stabbed but survived. 

At trial, prosecutors said that on the day of the murders Payne, who is Black, was drinking beer, doing cocaine, and looking at an issue of Playboy. When he went into Christopher’s building, they said, he found her door open and made sexual advances toward her. When Christopher resisted, prosecutors said, Payne stabbed her to death.

The state’s case was built largely on insinuation, circumstantial evidence, and racist myths about Black male sexuality, all in a county that holds the record for the most known lynchings in the state and is also responsible for nearly 50 percent of the people on its death row. Payne had no prior criminal history. According to court documents, when he was arrested, police found a syringe wrapper and a cap from a hypodermic syringe, as well as papers in his pockets that later tested positive for cocaine. But Payne insisted the papers weren’t his and his attorneys note that there was no evidence that he used drugs. They also say no police report mentioned that he appeared to be on drugs the day of his arrest. Payne’s mother, Bernice Payne, begged police to perform a drug test on her son but they refused to do so. Marks on Payne’s chest that prosecutors suggested were scratches—indicating a struggle with the victim—were actually stretch marks from weightlifting, Payne testified at trial.

But on Feb. 16, 1988, a Shelby County jury convicted Payne of two counts of first-degree murder and one count of assault with intent to commit murder and sentenced him to death. Payne has been on Tennessee’s death row ever since, despite a post-conviction challenge to his case focused on victim impact statements that reached the U.S. Supreme Court in 1991. In the penalty phase of Payne’s trial, a prosecutor told the jury “there is something that you can do for Nicholas”—Christopher’s son who survived the attack—implying that a death sentence for Payne could provide the answer to the family’s pain. The Supreme Court affirmed Payne’s conviction, but in a fiery dissent Justice Thurgood Marshall criticized the majority for overturning precedent that victim impact evidence could not constitutionally be introduced during the penalty phase of a capital trial. “Cast aside today are those condemned to face society’s ultimate penalty,” wrote Marshall, who was joined by Justice Harry Blackmun in his dissent, “Tomorrow’s victims may be minorities, women, or the indigent.”

Despite the decades-old questions about his case, on Feb. 24 the Tennessee Supreme Court set a Dec. 3 execution for Payne. In September, state Attorney General Herbert Slatery requested dates for nine men; the court set four, including Payne’s. On Feb. 20, Nick Sutton was executed by electric chair for the 1985 murder of fellow prisoner Carl Estep, despite affidavits from former correction officers who described incidents in which Sutton saved their lives. Tennessee’s string of executions comes as death chambers in formerly prolific death penalty states, like Louisiana, are dormant because of concerns, including execution protocols and racially biased, unequal application. 

But in the few states where the death penalty persists, even the coronavirus pandemic has not deterred the executioners. As courts close and some prosecutors work to free incarcerated people, several state officials are still trying to put prisoners to death. In Texas, prosecutors insisted that executions should proceed, despite arguments from attorneys for the condemned men that the virus would prevent their clients from having final visits with family and put execution witnesses at risk. The Texas Court of Criminal Appeals nonetheless stayed four executions and two more have been rescheduled due to the pandemic. The state still has five executions scheduled for this year scheduled through September, including two in May. 

Tennessee was set to kill Oscar Smith on June 4, but on April 17 the state Supreme Court rescheduled the execution to Feb. 4, 2021, because of the coronavirus pandemic. “The Court was absolutely right to stay Oscar Smith’s execution because of the COVID-19 virus,” Smith’s attorney, federal public defender Kelley Henry, wrote in an email statement. “It makes no sense to bring execution witnesses and other people into the prison and possibly expose them to COVID-19 infection or introduce the virus into the prison population. Mr. Smith, who has always maintained his innocence, needs to meet with his attorneys to prepare a clemency petition, and investigators need to interview people to get information for the clemency petition. None of that face-to-face work can happen at this time without risking public health.” 

Three Tennessee prisoners—Harold Nichols on Aug. 4, Byron Black on Oct. 8 and Payne in December—are still set to be executed in 2020.

In a Dec. 30 filing in opposition to the state’s motion to set an execution date for Payne, his attorneys wrote that the prosecution’s theory of their client’s case was “concocted out of whole cloth” and based on “outdated racial stereotyping.” They said that the state’s narrative of the homicides was that a sexually predatory black man high on drugs brutally murdered a white woman for rejecting his advances. They also highlighted issues related to evidence prosecutors presented, as well as evidence the state allegedly withheld. To bolster their case that Payne sexually assaulted Christopher, prosecutors presented a bloody tampon they said Payne had pulled from Christopher’s body. But, as the filing notes, police said they found it in the apartment two days after the killings and it “does not appear in any crime scene photos or video taken on the day of the homicide.” The day of her murder, Christopher had sex with not Payne but her boyfriend—but that evidence was not presented to the jury. Most notably, the December filing revealed that Payne’s legal team uncovered previously undisclosed evidence—a bloodied comforter, sheets, and pillow—that has not been tested. 

Payne’s attorneys also argue that he is intellectually disabled and therefore cannot be executed under the 2002 U.S. Supreme Court decision Atkins v. Virginia. Under that ruling, intellectually disabled people cannot be executed because it would constitute cruel and unusual punishment prohibited by the Eighth Amendment. “He came upon the crime scene simply because his girlfriend lived across the hall,” Payne’s attorneys wrote, “he heard a noise and went to help. He was overwhelmed by what he saw. He panicked and ran. His actions were that of a scared, intellectually disabled, twenty-year old. There is nothing in Mr. Payne’s background before, or since, that is consistent with the sort of person who would commit such a crime.”

In 2018, Payne’s post-conviction attorneys of 18 years left the federal public defender’s office. That’s when Henry, a supervising assistant federal public defender in Nashville, and her team took over his case and began a full reinvestigation. As part of that effort, they went to Memphis to review evidence. 

In their Dec. 30 filing, Henry wrote that the Shelby County Criminal Court Clerk’s staff refused to produce the evidence without a court order, a stance she called “unprecedented.” 

After obtaining the court order, Henry and her team sorted through numerous boxes and bags of evidence. During the review they checked the items against what they believed was a complete inventory of evidence.

“The last thing that we look through is this bag that has the bloody bedclothes,” Henry told The Appeal. “That’s not on our list, it’s not on any police reports we’ve ever seen. We were floored.”

They were so stunned that they asked the court clerk’s staff to confirm that the bedclothes were evidence from Payne’s case. 

“I’ve never personally experienced going to a property room and seeing evidence that had not been catalogued or provided before,” Henry said. 

The presence of blood on the sheets, Henry noted, “is completely inconsistent with any theory of the case that has ever been presented.”

Prosecutors had always maintained that the crime scene was contained to the kitchen. So, biological evidence from the bed could implicate another person and point to a sexual motive, according to Henry. In a December filing, Henry wrote that Christopher’s ex-husband, Kenneth Christopher, had a history of domestic violence. Although he was incarcerated at the time of the murder, he may have had the privilege of leaving the prison on weekends, the filing said. His whereabouts on the day of the murder are unaccounted for, Henry said. Henry also wrote that Christopher had sex with her boyfriend, Darryl Shanks, within hours of the murder and that Payne did not learn of this until a post-conviction hearing.

The Shelby County district attorney’s office did not respond to repeated requests for comment from The Appeal.

Sitting at a dining room table in her Murfreesboro, Tennessee home, Rolanda Payne told The Appeal what it was like to learn that the state had scheduled her older brother’s execution. 

She was shaken, she said, because she believed the December filing by Payne’s attorneys had so clearly laid out numerous problems with the case. 

“Now it seems like, to me, the court would say ‘we’ve been seeing this more often now,’” she said. “You see it in the Rodney Reed case, you see it in Nathaniel Woods’ case, you see it in the Walter McMillian case … who wouldn’t want the truth?” 

“My main concern was how it was gonna affect Bubba and my dad,” she added. 

Rolanda calls her brother “Bubba,” a nickname from her toddler years when she was unable to say “Pervis.” Her dad, Carl Payne, a 78-year-old minister who speaks slowly in a deep voice, was on the phone from his home almost three hours northwest of Nashville. His statements were laced with hope, an idea he and his daughter returned to repeatedly. 

“It’s not a good feeling,” he said of the place he found himself in after the state set Payne’s execution date. “It’s not a good feeling at all. But we can’t live there.”

His wife died in 2005, and Carl said he believes the stress and trauma of her son’s case contributed to her death. 

“She died believing that he was gonna come out of there,” he said. “She knew he wasn’t guilty of the crimes. She knew he was coming out. She told Rolanda when she was on her deathbed that God made her a promise. She wasn’t giving up.” 

Carl and Rolanda describe Payne as a fun-loving, kind-hearted boy who struggled academically in school but never had any disciplinary problems. Rolanda recalled how her brother was left in charge at home when their parents went to church on Sunday nights. Growing up in the Pentecostal church they weren’t allowed to listen to secular music, but on those nights they pretended they were at the club and danced to records by Rick James and Prince. 

When Payne got older, he and his father had a painting business.  

“He and I worked together, we got along real good together,” Carl said. “We had money in the bank. We were doing real well. Then all of a sudden he’s snatched from me and gets caught up in this kind of stuff. I never did believe that it was true.”

Rolanda said she believes there has been progress in America on racism, but that it’s an undeniable part of her brother’s case. Pervis told her that when he was being interrogated after his arrest officers told him “you think you black now, wait until we fry you.” 

As her brother faces execution, Rolanda expresses concern for the victim’s family, who she says is also being denied justice. 

The state, she says, thinks “that they’re really hurting us—which it does hurt us—but you’re hurting all of us that are attached to this particular crime. I don’t think they take that into consideration.” 

In 2015, Rolanda and Pervis’s sister died unexpectedly. Coming a decade after the death of their mother, the loss hit Pervis hard. 

For a while, Rolanda said, “he stopped fighting. He felt like he had no hope. Like, who am I going to come to when I get home? 

“I said, ‘Bubba, I’m gonna be here.’”

Source: theappeal.org, Steven Hale, April 29, 2020

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but by the punishments that the good have inflicted." -- Oscar Wilde