Judge vacates death sentences of Pervis Payne, who was to be executed for a crime he says he didn't commit

NOVEMBER 27, 2021 

Pervis Payne listens arguments for a motion regarding his intellectual disability claim at Shelby County Criminal Court on Friday, July 16, 2021.

(CNN)A Tennessee judge this week vacated the death sentences of Pervis Payne, who has spent more than three decades on death row for two murders he says he did not commit, due to the inmate's intellectual disability.

As a result, Payne now faces two life sentences, though it remains to be decided whether he will serve them concurrently or consecutively.

"Thirty-four years of trauma and pain and fear just released themselves in that courtroom," Payne's attorney, Supervisory Assistant Federal Public Defender Kelley Henry, said in an interview Friday, describing the moments before Tuesday's hearing when Payne wept as he hugged her.

"It was really just an astounding moment for all of us," she said.

Pervis Payne, center, hugs his attorney, Kelley Henry, before a court hearing on Tuesday, November 23, 2021, in Memphis, Tennessee.

Payne maintains he is innocent of the 1987 murders of 28-year-old Charisse Christopher and her 2-year-old daughter, who were fatally stabbed in an attack at their apartment in Millington, a Memphis suburb. Payne received two death sentences after being convicted on two counts of first-degree murder, as well as assault with intent to commit first-degree murder of Christopher's 3-year-old son, who survived the attack.

Payne has spent years attempting to establish his claim of intellectual disability as a reason he should not be executed, Henry said.

The US Supreme Court ruled in 2002 in Atkins v. Virginia that it is unconstitutional to execute someone with an intellectual disability. But Payne -- whose attorneys say he has a functional IQ of 68 -- was unable to make his case in Tennessee until Gov. Bill Lee signed a into law legislation this year changing the state's definition of an intellectual disability and establishing a procedure for death row inmates claiming to have a disability to appeal their sentences.

The office of Shelby County District Attorney Amy Weirich last week announced it was filing a petition to remove Payne's death sentences after acknowledging a state expert had examined Payne and "could not say Payne's intellectual functioning is outside the range for intellectual disability."

Shelby County Judge Paula Skahan wrote in an order filed Tuesday that Payne's petition "is supported by two expert opinions concluding that Petitioner is intellectually disabled pursuant to Tennessee law as well as the decisions of the United States Supreme Court."

"I can go home and relax," Payne's father said Tuesday, according to CNN affiliate WMC, "and know that justice has prevailed."

"Thanksgiving for me will never be the same and I am sure I am speaking for my father as well," said Rolanda Holman, Payne's sister, per the Innocence Project, which has been involved in Payne's case.

"Although he is not able to come to the table and have Thanksgiving with us," she said, "it gives me such a drive and reignites my fire even more to work toward that day when he will be able to sit at the table with our family and have a good slice of turkey."

As for the victim's family, the DA's office said it met with them this month "to explain the current reality with which we are now faced."

"The family was not happy, but they understand," the statement said. "We can't change the facts and we can't change the law."

Carl Payne, front left at the microphone, speaks with reporters about his son, Pervis Payne, on Tuesday, November 23, 2021, in Memphis.

Innocence claim

A resentencing hearing has been scheduled for December 13, when the judge is expected to decide whether Payne should serve the two life sentences concurrently, like his attorneys have asked, or consecutively, at the DA's request.

According to WMC, Henry said after Tuesday's hearing that a concurrent sentence would mean Payne would eligible for parole in about six years.

While Payne, his family and supporters are grateful for this week's ruling, they will not rest until he is exonerated, Henry told CNN.

Henry told CNN that Payne was visiting his girlfriend across the hall from the victims when he discovered them. Payne, 20 at the time, tried to help the victims, who were White, she said, but realized that as a Black man he would be suspected of the crime, and he ran from the scene.

A judge ruled last year that evidence in the case be DNA tested, and according to statements from his Payne's attorneys, the results show male DNA from an unknown third party were found on the murder weapon. However, the DNA is "too degraded to identify an alternate suspect via the FBI's database," according to his attorneys. As a result, it was not enough to exonerate Payne. Payne's attorneys have been unable to obtain other evidence -- like fingernail scrapings from the victim -- for DNA testing.

While the Shelby County District Attorney's Office acknowledged Payne could not be executed, it rejected his innocence claims, saying evidence of his guilt "has never changed or weakened."

DNA testing has failed to exonerate Payne, and Payne's conviction has been reviewed multiple times by appeals courts at both the state and federal levels, the statement said.

"The Tennessee Supreme Court called Payne's self-serving testimony 'unbelievable and contrary to human conduct and experience,'" the statement said. "The U.S. Supreme Court called the evidence against Payne 'overwhelming and relatively uncontroverted.'"

Payne's family, however, remains hopeful, Henry said.

"His sister and father are people of deep faith, as is Pervis, and they believe Pervis is coming home soon," Henry said. "They believe this was God's will, and that God is acting through his case."

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