MEMPHIS, Tenn. (WMC) - Today attorneys for Pervis Payne filed a complaint to prevent Tennessee from carrying out Payne’s execution on Dec. 3 until the state creates a procedure to formally judge his claim that, as a person with an intellectual disability, his execution would be unconstitutional.
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 Payne has an intellectual disability.
When Payne was 20 years old, he was 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 he was at the scene, the police focused on Payne and did not investigate other suspects, including another man Payne saw fleeing the building and the victim’s violent ex-husband, according to the Innocence Project’s petition on his behalf
“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,” Katie Powers, a past president of the Tennessee Disability Coalition, said. “Tennessee must not execute Mr. Payne without giving him a process for presenting the overwhelming evidence of his intellectual disability in court.”
The Tennessee Supreme Court held in 2016, in Payne’s own case, that Tennessee has no interest in executing individuals with intellectual disabilities and advised the legislature to provide a process for those people to present their claims in court and determine their eligibility for execution.
Neither the Tennessee Supreme Court nor the General Assembly has created the procedure.
Rep. G. A. Hardaway, chair of the Tennessee Black Caucus of State Legislators, recently announced the Caucus will file a bill to enable 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 Payne’s scheduled execution date.
In 2019, Dr. Daniel Martell, a prominent forensic psychologist, conducted the most comprehensive testing and examination o Payne to date. Martell concluded that Payne has an intellectual disability and 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.
Martell was the expert for the State of Virginia in Atkins and both the defense and the government have relied on his expert opinion in hundreds of cases. The State of Tennessee retained and relied on Martell’s diagnosis in two other capital cases.
According to Payne’s complaint, family, friends, teachers, and peers recognized that he had an intellectual disability from an early age. 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. Payne’s next-door neighbor remembered that he could not feed himself until he was five.
Shelby County Criminal Court will issue a decision on Payne’s request to have crime scene evidence tested for DNA. DNA testing, which was unavailable at the time of Payne’s trial and has not been performed any time since could provide scientific proof that could exonerate him.
Various pieces of evidence have never been tested for DNA, including a knife, a tampon, and bloodstained items.
For more information about Payne’s case, please visit www.pervispayne.org