Judge Paula Skahan ruled Wednesday that DNA evidence may be tested in the death penalty case of Pervis Payne, a Tennessee man whose execution is scheduled for Dec. 3.
While it’s likely that the state still would have prosecuted Payne regardless of any exculpatory DNA evidence, if a third party’s DNA were to appear across multiple items from the crime scene, “the more likely it would appear Mr. Payne did not commit those offenses,” Skahan wrote in her ruling.
“Conversely, if Mr. Payne’s DNA is found on several of the items, confidence in the jury’s verdict would be bolstered,” she wrote.
Payne was convicted in the 1987 stabbing deaths of Millington woman Charisse Christopher, 28, and her 2-year-old daughter, Lacie. Christopher’s 3-year-old son, Nicholas, survived multiple stab wounds.
DNA from the crime scene has never been tested, but Payne’s attorneys, including representatives from national legal group The Innocence Project, had filed a petition seeking the testing of the knife used as the murder weapon, a tampon, bloodstained curtains, women’s glasses, a bloodstained stuffed animal, a rug, a table cloth, fingernail scrapings from the victims, vaginal swabs from a rape kit and other items.
After Wednesday’s ruling, Payne’s attorneys went to Skahan’s chambers, where evidence has been kept since a Sept. 1 hearing. There, they packaged it, then drove it to a FedEx location where they immediately mailed it to the Forensic Analytical Crime Laboratory, a private laboratory in California that conducts testing for both prosecution and defense.
“Mr. Payne has always maintained his innocence and having this opportunity after 33 years to get to the evidence, to see if we can get to the truth of the case is just deeply gratifying,” said Kelley Henry, a federal public defender representing Payne. “There’s a possibility we won’t get any more answers. We understand that. But just the opportunity, it’s wonderful.”
During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment.
He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christopher’s throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.
Some of the items from the 1987 crime scene are no longer in custody, including the fingernail clippings, vaginal swabs and the victims’ clothing. Because of that, Skahan denied the testing on those items.
“Were these items still available for testing, this Court would have been inclined to permit their testing,” she wrote in her ruling.
Henry said the fact that those items are no longer held in evidence raises “serious questions.”
“That’s the evidence that could be possibly the most probative, particularly the fingernail scrapings,” Henry said. “Those were argued at trial. We know there’s a different type of DNA under her fingernails because there was a Type A and a Type O (blood) under her fingernails. The fact that we can’t find them is very disturbing.”
In her ruling, Skahan wrote that while there is the possibility that the evidence has become contaminated over the years, Payne’s request was still able to meet all the requirements of the law for DNA testing.
The post-conviction DNA Analysis Act says the court shall allow DNA analysis if “a reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA analysis,” if “the evidence is still in existence and in such a condition that DNA analysis may be conducted,” if “the evidence was never previously subjected to DNA analysis” and if “the application for analysis is made for the purpose of demonstrating innocence and not to unreasonably delay the execution of sentence or administration of justice.”
“When reviewing a DNA petition, the court assumes the DNA will review exculpatory evidence,” Skahan wrote.
In her ruling, Skahan noted that both Tennessee law and DNA testing techniques have changed since Payne last brought a petition to request DNA testing in 2006. Today, the FBI-maintained CODIS database is far more expansive, creating a greater likelihood of DNA matching someone other than Payne.
She also noted that since Payne’s petition said the DNA could be tested within 60 days, it was not filed within a time frame to delay the execution.
The Shelby County District Attorney’s Office has maintained that regardless of what DNA testing shows, the evidence to convict Payne of the crimes was overwhelming.
An officer saw him leaving the scene of the crime drenched in blood, and Payne admitted to being there. His baseball cap was found looped around the 2-year-old victim’s arm, and his fingerprints were found on a beer can inside the apartment.
“The Court agrees with the State there is not a reasonable probability exculpatory evidence would have led the State not to prosecute the Petitioner. … There was significant evidence presented at the Petitioner’s trial implicating the Petitioner in these offenses,” the ruling states. “However, in the Court’s view the Petitioner has established a reasonable probability he would not have been convicted of first degree murder had exculpatory evidence been presented to the jury.”
Vanessa Potkin, director of post-conviction litigation at The Innocence Project, called DNA testing “an important piece of the puzzle” in Payne’s case.
“When DNA evidence exists in a death penalty case, as it does here, it should always be tested to avoid the irreversible act of executing an innocent man,” she said.
Separately from the request for DNA testing, Payne’s attorneys have asked for a halt to his scheduled execution until hearing his claim that he is intellectually disabled.
Both the Tennessee Supreme Court and the U.S. Supreme Court have ruled against executing people with intellectual disabilities, but Payne’s multiple attempts to have his claim heard have been denied for procedural reasons, according to the complaint filed in federal court Monday.
Katherine Burgess covers county government and religion. She can be reached at firstname.lastname@example.org, 901-529-2799 or followed on Twitter @kathsburgess.