This episode contains descriptions of violence and murder. Welcome to Tokens Show, the variety show about things that matter. I'm your host, Lee C. Camp. Today, the case of Pervis Payne.
Episode Transcript
Lee Camp
Rolanda Holman
You have an innocent man here that is fighting for his life.
Lee Camp
The increasingly nationally known case of Pervis Payne, now on death row for more than 30 years in Tennessee, provides a microcosm of the issues that trouble the exaction of capital punishment in the United States. Plus, we consider today American Christianity's continued support of the death penalty.
Shane Claiborne
The fact is that the death penalty wouldn't stand a chance in America if it weren't for Christians.
Kelley Henry
It was a Saturday, June 27th, 1987.
Lee Camp
This is Kelley Henry. She is an experienced trial attorney.
Kelley Henry
Shariece Christopher had just returned home from shopping with her children: Nicholas, who was just shy of four years old, and Lacie, who was almost two years old. Shariece was last seen at about two o'clock in the afternoon by some neighbors. Mr. Payne was expecting to visit his girlfriend, Bobbie Thomas, who lived in the apartment across from Shariece Christopher.
Lee Camp
Mr. Payne is Pervis Payne. At the time he was 28 years of age. He lived in Millington, Tennessee with his family: two sisters, and parents Carl and Bernice.
Kelley Henry
Mr. Payne was expecting to visit his girlfriend, Bobbie Thomas, who lived in the apartment across from Shariece Christopher. It was an apartment that basically had two apartments down and two apartments up. Mrs. Christopher's apartment was number four. Bobbie Thomas, Mr. Payne's girlfriend, was apartment number two.
Lee Camp
Bobbie Thomas, Pervis Payne's girlfriend, had been away that week, but now she was expected home.
Kelley Henry
And they were looking forward to spending the weekend together, Bobbie and Pervis.
Lee Camp
Pervis had been by Bobbie's apartment earlier. She was not there.
Kelley Henry
Earlier, he had left his belongings outside Bobbie's apartment because he was on foot. “I'll come back.” He came back. He came up the stairs to check to see if Bobbie was home yet.
Lee Camp
She still wasn't there. And what happened the next moment would change the whole trajectory of the life of Pervis Payne. According to Pervis...
Kelley Henry
He heard a noise from the apartment next door. Mrs. Christopher and her daughter, Lacie, had all been stabbed. It's a brutal crime scene. Mrs. Christopher sustained more than 40 stab wounds and 40 defense wounds. The crime scene itself is horrific.
Lee Camp
According to Pervis Payne, he entered the apartment in an effort to help. But he soon realized that if he stayed much longer, he would be the only suspect. So, he ran.
The evidence, according to the prosecutors, apparently seemed overwhelming. At court, they would make the case, says Mrs. Henry, that...
Kelley Henry
Pervis had actually entered the apartment earlier, he had made a sexual overture to the victim, and she rebuffed him. And the prosecution claims he was high on cocaine. He then murdered this family.
Lee Camp
The little boy, Nicholas, survived. The little girl, Lacie, and their mother, Mrs. Christopher, died. A mere six months later in 1988, Pervis Payne was tried.
Kelley Henry
Which is unheard of in terms of capital cases.
Lee Camp
That was over 30 years ago. But Kelley Henry is now Pervis's attorney, just recently becoming his lawyer. She's a supervisory assistant federal public defender. At Pervis's original trial in 1988, Pervis's defense attorney...
Kelley Henry
Didn't have an investigator and didn't have co-counsel.
Lee Camp
To Mrs. Henry, well-experienced with capital cases, this whole scenario seemed, well, bizarre.
Kelley Henry
I have no idea why he didn't get an investigator or co-counsel. That's standard of care, even back in 1988. We always have two lawyers on every capital case. And in my office, it's two lawyers, two investigators, and a paralegal at a minimum. In this case, I've actually staffed it with two lawyers besides myself and four investigators and a paralegal.
Lee Camp
But such resources were not at the disposal of the family of Pervis Payne in 1988.
Kelley Henry
After he was convicted and sentenced to death, after a very short sentencing hearing, he was immediately taken to what then was called The Walls, the old prison off of Cockrell Bend, and put on death row.
Lee Camp
For those of you who do not live in Nashville, you likely would not know The Walls. It still stands to this day, abandoned since 1992. It's a haunting place, a once-occupied prison now abandoned. If you've ever seen the Hollywood movie The Green Mile with Tom Hanks, then you've seen the walls. For Pervis Payne, it was the…
Kelley Henry
First time he'd ever been arrested in his life. He'd never been to prison. It's not disputed that Pervis was in the apartment. We know that. He's always said that he went in to help, that he observed Mrs. Christopher with a knife in her neck. He removed the knife, and then it sort of washed over him. He was the only one there. He was going to be the suspect. And he was right. He ran from the apartment, pushed past the police officer, hid, and was later arrested at an ex-girlfriend's house, which was very close to this crime scene just a few blocks away.
Rolanda Holman
When this happened, I was only 13 years old.
Lee Camp
This is Rolanda Holman. She's the sister of Pervis Payne. When thinking about the day that Pervis was arrested, she recalls...
Rolanda Holman
I do remember the devastation that it literally brought to my family. We were in total disbelief. During that day, we all had attended a church picnic. You know, having a good time. And I believe we had made it home. My mom and my dad and sister and all of us had made it home, and then we found out my brother had been picked up by the police. My mother always tried to protect us from any issues. So I didn't really know a whole lot that was going on then until later on. They were just saying, “He got in a little trouble, but we're working it out.” You know, we don't really know all the issues still. And we said, “Well, what happened? What happened?” So then I remember my mother finally telling us that he was in jail for murdering somebody. And it was just something that we could not understand. Like what? I mean, how is that? That's crazy. We never believed that. Even the people in our community. My brother's never been in any trouble. So it just didn't make sense to us.
Lee Camp
What are some of your earliest memories of him?
Rolanda Holman
That he thought he could dance, you know? Coming from a strict Pentecostal background, we would be so happy when my mother and father would go to church on Friday nights and leave us home, because we would have parties. We would play Rick James. And so we would make tapes and he would tell us, “Guys, I recorded Rick James last night. I recorded Prince. I recorded Michael Jackson last night.” And we would be so excited. So we'd just be waiting. When my parents said, “We're going to church tonight. We're going to leave Pervis home with you guys,” we would be like, “Yes!” And we would dress up in my mom's clothes, and we would play our music, and he would dance. We were big dancers. But that was one of my fondest memories. And I think what I hold dear to me is that he still loves me the same way. Like, we still laugh. We still have fun. We still talk about old days. You remember this? You remember that?
Lee Camp
My understanding is that this case is significant for other reasons, legally.
Kelley Henry
Certainly. During the penalty phase of the trial, the prosecution introduced what's known as victim impact evidence.
Lee Camp
That is: the prosecution presents testimony, typically from the family of the victim, during sentencing.
Kelley Henry
And at the time, they knew what they were introducing was actually outlawed by the U.S. Supreme Court's decision in Booth v. Maryland and South Carolina versus Gathers. They did it anyway because folks felt that that issue was vulnerable on the Supreme Court. The case did go all the way to the Supreme Court, and the Booth and Gathers decisions were overruled in part. It was significant in the fact that it established the right to present victim impact evidence in a penalty phase. It's also significant because it was Thurgood Marshall's last case. He was so thoroughly disgusted by the outcome, he read his dissent from the bench, talking about how the only thing that had changed was the composition of the court, and two hours later announced his resignation from the court.
Lee Camp
Here's Rolanda, Pervis's sister again, on her experience in the courtroom at Pervis's trial.
Rolanda Holman
It was rather difficult for us to just try to listen to what they were saying about my brother. And we're saying, “This could not be possible. Like this is not true. Like it's a lie.” We're raised in a Christian home. My dad is a pastor and he's still a pastor to this day. So honesty and truth is very powerful for us. And they would say, “Just tell the truth,” and he said, “I'm telling the truth.” And to listen how they took his truth during the court, and they manipulated it to create their own motive, was something that was just very disheartening to be able to see. During that time, we understood that there were some racial things going on, but I never thought that I would experience something in this manner. And I told him, I said, “Bubba…”
Lee Camp
This is what Rolanda always calls Pervis: Bubba. It's what she's called him from the time she could talk.
Rolanda Holman
I said, “Bubba, as soon as they saw the color of your skin, you were guilty, so your truth did not matter.” And as we went through court, we were able to realize that his truth didn't matter at all.
Lee Camp
This is, of course, no trivial accusation. To claim that the prime suspect's truth or story is not fairly heard, or to use Rolando's words…
Rolanda Holman
… didn't matter at all...
Lee Camp
is a serious charge. Whether one accepts Rolando's claims here or not, it is clear that race has been at the heart of the debates around the death penalty. You'll hear an example of this with the noted Baldus study here in just a moment. In any case, the prosecution and Pervis Payne both agreed that Pervis was at the scene, and that Pervis ran from the authorities. But Kelley Henry disputes the nature of the evidence that was presented.
Kelley Henry
The prosecutors like to talk about the beer cans and the hat quite a bit. That's their hook. There are pictures of three beer cans sitting next to the television in the living room of the victim's home. Two of them were closed. One of them was open. Mr. Payne's fingerprints were found on all three of those beer cans. The evidence about the hat: the testimony was that the little girl, Lacie Joe, had Pervis's baseball cap, that her arm was through the U shape around the back of a baseball cap, where you have the little strap to adjust it for size, that her arm was through that U shape, this implication being that couldn't have happened if it had just fallen off his head by accident if she was already deceased when he arrived at the scene.
Lee Camp
This evidence seems, at first glance, damning to Pervis's case. No question that he's run from a horrific crime scene. The police then allegedly find three beer cans with the suspect's fingerprints in the victim's apartment, and a victim's arm through what is undisputedly the suspect's hat. Kelley Henry on this.
Kelley Henry
There's no photographs of that. The photograph of the hat is the hat under Lacie Joe's arm. In that photograph, Lacie Joe is face down. The testimony at trial from the officer who was first on the scene is that Lacie Joe was face up when he came to the scene, and that the bodies were moved at some point. So the photographs we have are not the way in which Lacie Joe was when the police came on the scene. If we take the prosecution's theory, they say that the hat was removed by EMTs. Well, if the hat was removed by EMTs, why is it under her arm? Because if they had removed it, standard police practice would be to immediately take that hat into evidence and secure it, but it wasn't. Instead, it's under her arm where she's face down. When you look at the photographs, you can see chalk marks. And what police officers do when they collect evidence at a crime scene is that they'll circle evidence that they want collected with chalk, and then the crime scene techs come in behind them and collect the evidence. And they're supposed to be careful with it, and make sure they have gloves, tag it, all those things, none of which happened with any of the evidence in this case. But you see a circle next to the feet of Lacie Joe that's empty. There's nothing in it. It's our belief that the hat was there. Pervis testified that he had a Jerry curl, and so he always wears a hat just sort of sitting on top of his head. He never pulled it down. He doesn't remember it falling off his head. Obviously it did. It is his hat. We don't dispute that. But the way the testimony came in about the bodies being moved... and some of it was legitimate. They needed to move everything to get out of the way to get Nicholas, who was still alive. That was their number one priority. But that means that the evidence is not in a way that we can examine it.
Lee Camp
So Pervis's hat had fallen off, but the claims which surround its location as it was originally found at the crime scene, appear at the very least, muddled. A similar muddling of circumstance, claims Mrs. Henry, surrounds the beer cans.
Kelley Henry
The testimony was that Pervis bought three beers, and that he was sipping on one. He said then, now, and always that he put the three beers in a sack outside the door of Bobbie Thomas's apartment, his girlfriend, and he had left them there. So, two closed, one open. He said when he ran from the scene, he picked up his overnight bag and the sack of beers, but the open can basically dripped through the bottom of the bag and they all fell out as he was running and he just kept running. There are two police reports about another beer can that is found outside the apartment of Bobbie Thomas. So now we have four beer cans in evidence, when we've only bought three. I think, I believe, that those beer cans were placed there by the police. It doesn't make sense that if you were coming into someone's house with your beer, that you're gonna set it down next to the TV. You go put it in the fridge. You know, there would be no reason for those beer cans to just be sitting casually next to a television set under any scenario. You know, did the police think they were framing a guilty guy? Maybe. Ends justify the means sometimes. But did someone just pick them up and put them there, and then that person leave, and the next person who came just didn't know and took a photograph? We don't know.
Lee Camp
You're listening to Tokens Show. This is our special episode on the case of Pervis Payne, a microcosm of the apparent injustice of the American death penalty. Coming up, yet more troubling realities.
Welcome back to Tokens Show honoring truth tellers, justice seekers, and those who do courageous acts of mercy. We've been talking to Kelley Henry, attorney for Pervis Payne, currently on death row in the state of Tennessee. Mr. Payne's case has drawn national attention with his specific case highlighting numerous potential injustices. In addition, Mr. Payne's case has been selected by the Innocence Project, a legal nonprofit organization that seeks to exonerate individuals it believes to be wrongfully convicted. For example, the Innocence Project reports that 375 people in the United States have been exonerated by DNA testing. And these 375 people served an average of 14 years in prison before their exoneration and release. Here's another troubling fact. Since 1973, more than 170 individuals on death row have been exonerated. That is, individuals who are once convicted of a crime and sentenced to death have been released from death row given evidence of their innocence. Skimming through those cases, as recounted by the Death Penalty Information Center based in Washington, DC, is distressing. Prosecutorial misconduct, false forensic evidence, ineffective representation, false claims of jailhouse informants, and hundreds and hundreds of years served on death row for crimes, for which the defendants have now been exonerated. Now let's turn to another factor of this case: people's beliefs about the death penalty. It is worth noting that there is extensive debate within the Christian community regarding the death penalty.
Shane Claiborne
Growing up, I never questioned the rightness of the death penalty. I was raised in the heart of the Bible belt, and capital punishment seemed to be pretty clearly ordained by God. I can remember arguing a few liberals into the ground over it, and I had the Bible verses to back it up.
Lee Camp
That's Shane Claiborne, prominent Christian author and activist. Though having lived now for years in Philadelphia, he has no interest in hiding his East Tennessee heritage. And yet these days, he has challenged the supposed orthodoxy of his childhood American evangelicalism.
Shane Claiborne
I had one fellow in Texas confess to me. He said, “I want you to know man, I'm a redneck: gun-toting, pickup truck-driving, tobacco-chewing, whiskey-drinking backwoods redneck.” And then he went on, “But I got to tell you, I've been reading your stuff, and it has messed me up.” He said, “I want you to pray for me. I'm a recovering redneck.” So people change. Convictions change. And I want you to know that I'm not sharing tonight from a place of self-righteous indignation. I'm not on a soapbox. I'm a bit of a recovering redneck myself, so don't worry about me getting all up in your face. And for me, it's the stories that changed me.
Lee Camp
Stories like that of Ndume Olatushani. Ndume grew up a poor kid in the projects in St. Louis.
Ndume Olatushani
I was really angry about what had happened to me, and I could have very easily spiraled down into this anger and became everything that they was trying to say that I actually was.
Lee Camp
What happened to Ndume was this: he was arrested, then...
Ndume Olatushani
... tried and convicted in a state that I had never been to and sentenced to death.
Lee Camp
Tried and convicted in a state he had never been to prior to his being brought to Tennessee in handcuffs to be tried for a murder he allegedly committed in Tennessee. A black man, tried before an all white jury, for allegedly killing someone white. And then he found himself...
Ndume Olatushani
...sitting on death row.
Lee Camp
And yet, he says...
Ndume Olatushani
I knew I shouldn't have been there in the first place. So from day one, I was fighting, trying to get out. It was a struggle. The worst thing that can possibly happen is that the people come to your cell and tell you, “Hey, listen, we need to take you so you can make a phone call home.” So when they came to my cell and told me that, I'm thinking all these different things that my mother is going to tell me about something that had happened to somebody else. But long story short, there was my sister on the phone telling me it was my mother killed in a car accident. And it was like everything slowed down for a minute. From that moment, I'm telling you my life was shattered. I mean, I had my mother when I knew the world was against me. I knew I had my mother. And the last time I'd seen her, she was leaving the visiting room. I actually jokingly said, as I was hugging and kissing her goodbye, that I wouldn't know what to do with her if I ain't have her in my life, and she just kind of jokingly said, “Oh yeah, you know what to do when the time comes.” And neither one of us knew that that would be the last time we would actually see each other. But when I first got this information, listen, I'm telling you, if my eyes was open, I was crying. If I wasn't crying, I was sleeping in the chair so I could sleep. But three days after this deal happened, she came to me as clear as we sit in here, and the only thing she said was, “Get up.”
Lee Camp
His mother came to him in his tear-soaked sleep of grief, and says to him, “Get up.”
Ndume Olatushani
And she came to me in this dream, I jumped straight up.
Lee Camp
And he kept on fighting for his life. Amnesty International reports that after 20 years on death row and endless legal fights, it would become clear that trial evidence had been fabricated and evidence of his innocence suppressed. In 2012, he was finally offered an Alford plea, which would entail an official claim of innocence while accepting a second degree murder charge. Ndume recounts his take on the reasoning of the authorities in not simply letting him go from prison.
Ndume Olatushani
First, they said that they thought I was guilty, which they had to say. The second thing that they said: they didn't want me walking out of Shelby County jail, standing on the steps, telling people what they had done to me. And thirdly, they didn't want to be civilly liable for the time that I actually spent in prison.
Lee Camp
Which is to say: he's received no compensation, and still technically has a felony on his record. So stories like that began to affect Shane Claiborne. He says that he was not argued into seeing things differently. He was storied into seeing things differently. Storied into seeing things differently, yet still devotedly Christian. He then had different things to say to and about Christians.
Shane Claiborne
As my brother Dale Recinella says, “The Bible belt is the death belt in America.” Wherever Christians have been most concentrated is where the death penalty continues to flourish. It's a strange thing, isn't it?
Lee Camp
Strange from his perspective because...
Shane Claiborne
95% of Americans say Jesus would be against the death penalty. We just got to convince the Christians to take him seriously.
Lee Camp
Besides the changed theological rationale, there are troubling historical and pragmatic problems as well, Claiborne says.
Shane Claiborne
As our brother Brian Stevenson, an incredible death penalty lawyer in Alabama said, “When we look at the death penalty, it's important to realize it's the direct descendant of lynching. We see that we move from lynching to a more palpable way of taking lives, and particularly black lives.” You can't undo a mistake when it's comes to the death penalty. We know it's not a deterrent of crime. We know it costs more to have the death penalty than alternatives to it. So how in the world do we still have it?
Lee Camp
To his distress, he claims that...
Shane Claiborne
The death penalty wouldn't stand a chance in America if it weren't for Christians.
Lee Camp
Claiborne's book is entitled, Executing Grace: How the Death Penalty Killed Jesus and Why it's Killing Us. He's pointing to the deep apparent contradiction in Christian opinion around the death penalty and the most basic claims of Christianity: namely, the execution of the one thought to be the savior in a divine act of forgiveness, which should, in theory, abolish any further capital punishment. In other words, this way of understanding that very old fundamental story about a gruesome crucifixion becomes a radical sociopolitical pronouncement freeing the guilty from their guilt, freeing the guilty from any more bloodletting, as this old hymn recollects, performed live at one of our shows.
[“There is a Fountain” plays]
Lee Camp
That was Buddy Greene, along with Sonya Isaacs, Vince Gill, and yours truly, performing the old hymn, “There is a Fountain.” In the latter part of the 20th century, Pope John Paul II called for a stance of being unconditionally pro-life, which was not just about abortion, but included calling for “consensus to end the death penalty, which is both cruel and unnecessary.” This stance was echoed by the United States conference of Catholic bishops. In 2018, Pope Francis made this stance more direct. Church teaching which made exceptions for the death penalty arose in a “period that was more legalistic than Christian, which ignored the primacy of mercy over justice.” Consequently, he affirmed that “in the light of the gospel, the death penalty is always inadmissible, because it is an attack on the inviolability and dignity of the person.” However, a survey from 2020 indicates that 57% of U.S. Catholics still support the death penalty. As already indicated, one of the grave concerns is the manner in which race has played into the practice of the death penalty. Back to Kelley Henry, attorney for Pervis Payne. We talk a bit about the history in the United States, I understand, going back to the 1980s. There was a significant Supreme Court case in which data was presented that, of the variables involved in who gets capital convictions, that the race of the perpetrator has some significance, but that the race of the victim has the greatest significance.
Kelley Henry
Yes, exactly. That was the Baldus study that was introduced in the case of McCleskey vs. Kemp. As time has moved on, the Baldus study has been reinforced with each decade. We know that 85% of people who are actually executed, their victim was white. In Tennessee, of all the executions we've had so far, all but one, the victim was white. We also know from studies in Texas that an African-American man is three times more likely to be executed if the victim is a white woman. Race is just intrinsic in the death penalty, and it's intrinsic not only because of overt racism, which does occur, but also that implicit bias that has an impact on how you see that evidence. And when you're identifying more with the victim than the defendant, even if you are a person of goodwill... and you know, a lot of damage has been done, even in Pervis Payne's case, by white liberal people of goodwill who did not understand the proof that was sitting right in front of them, what they should have been investigating.
Rolanda Holman
Going back to what Kelley was saying...
Lee Camp
That's Rolanda Holman again, sister of Pervis Payne.
Rolanda Holman
And I have said this, and I will continue to say this. When you hear what she's just explained and described of the things that have happened, you realize there is no motive. He never said he wasn't there. He never changed his story. The things about the beer cans seem staged. You know, Bubba told me the same thing that day that I went to ask him, and he said the same thing. Well, this was back in the 90s. So then we come years later, and she's having the same theory that... Bubba and I, we should have been investigators back then in the 90s, because that was our same theory that we had back then. I think people need to realize that these things are not just happening in major cities. It is happening right here in our volunteer state of Tennessee. It's Bubba, but there are many other Pervis Paynes. You have an innocent man here that is fighting for his life. Kelley's fighting. We have the Innocence Project fighting. We have people behind us, our family and friends, that are fighting for us. The church body. We have all these people fighting for this one man. If you think about the times way back in the day when civil rights were really coming on the scene, the church has always played a heavy part in justice, in trying to create justice, and coming together. And during this time, we were able to reach out to the Church of God in Christ, and really, some of them reached out to us, because we often say he's a son of the church. And so we've had major support from the bishops there in Memphis, and the church leaders just around the world. They have been very, very supportive of my brother, supporting his innocence.
Lee Camp
There are at least two more things you need to know about the Pervis Payne case which leave me, well, dumbfounded, coming right up.
This is Tokens Show and our special episode on Pervis Payne, currently on the state of Tennessee's death row. If you'd like more resources related to this story, please visit our website at tokensshow.com/deathpenalty. So far, we've heard tell of some of the systemic issues in the United States around race and other systemic failures. We've added to this the accounts given by Kelley Henry, a federal public defender representing Pervis Payne, along with Rolanda Holman, the sister of Pervis Payne. They have raised potential issues with the evidence and the prosecution storyline as well as potential issues related to race. But there are two other major issues. We've not yet mentioned. First: DNA. We reported earlier that the Innocence Project has taken up advocacy for the Pervis Payne case. They report that 375 people in the United States have been exonerated by DNA testing. Moreover, more than 170 individuals who have been placed on death row have been exonerated and released from death row, some through DNA testing. So, what of it?
Kelley Henry
When the innocence project became involved in the case…
Lee Camp
Kelley Henry again, attorney to Pervis Payne on death row…
Kelley Henry
they did their evaluation of the case and they brought in a law firm to help as well. And we filed this petition in Shelby County, criminal court for post-conviction DNA testing.
And we requested a number of items to be tested, 13 items of evidence plainly from this case that we wanted to test. And then we listed all of them and asked for DNA testing. And one of the things that you have to establish under the law to get DNA testing is that the evidence still exists. That's something we have to prove.
So we file on July 22nd, 2020. And we ask for testing of curtains, stuffed animals, the knife, which is the murder weapon, fingernail scrapings, glasses that we found. That we didn't even know how relevant they were at that point. And the state opposes.
Lee Camp
The state opposes the DNA testing.
Kelley Henry
But in their opposition, they say, but you know, to be clear to the court, every item that they request to test exists, except the vaginal swabs.
Well, the item that we really wanted to test was the victim's fingernail scrapings. It's like I said, there were 40 defensive wounds. Some of her fingernails were literally ripped all the way back to the cuticle. We know perpetrator DNA would be in those fingernail scrapings and on July 30th, the Shelby County D.A. said they existed.
On September 1st when we go to court, they say they had vanished. They don't know where they are. There's no chain of custody. There's not a single report about where those fingernail scrapings were kept or where they went.
Lee Camp
So somehow they like quote unquote vanished in 30 days.
Kelley Henry
Exactly. Yes. With a DNA motion pending that's unconscionable. That right there, in my opinion is enough to say that you shouldn't execute this man.
Lee Camp
However, a judge did allow the DNA testing on what evidence was still testable this past September. At the time of writing this episode, the DNA results have not yet been announced.
Add to all that one more deeply troubling element in this case.
Kelley Henry
So Pervis is unquestionably, a person who has intellectual disability.
Lee Camp
Pervis pain has an intellectual disability.
Kelley Henry
And that condition is often misunderstood. People with intellectual disability have compassion. They can have fun, they can dance, they can hear your problems.
Pervis actually had the wonderful support of a loving family. And that's one of the things that we know persons with intellectual disability will do better in a supportive environment. And just by happenstance, his family was that supportive environment and he was able to have a good life and to be a part of his community.
Lee Camp
Rolanda also recalls her own early memories involving Pervis's disability.
Rolanda Holman
He did have some challenges like Bubba could not help us with our homework. You know, Bubba did not wash his clothes because anything regarding a process he could not get together. You know, even just these clothes are dark clothes. These clothes are white clothes. I didn't know what was wrong until we got older. So we began to understand differently, but mother always encouraged him like “Pervis you can do whatever you want to do. You know, Pervis. You can be this, you can be that.” So when Kelley was talking, I just began to remember these things that really caused me to see years later that he did have intellectual disability.
Lee Camp
You may be wondering the legal disposition with regard to executing someone who has an intellectual disability. Well...
Kelley Henry
In 2002 the U.S. Supreme Court in a case called Atkins versus Virginia said that it violated the constitution to execute people with intellectual disability. For two reasons. One is that we just see people as a community with intellectual disabilities as being less culpable, but more important for Pervis's case is the court said that people with intellectual disability are at a special risk for wrongful execution. And Pervis's case is the embodiment of that concern. They talk about how people with intellectual disability are not able to work with their lawyers. They make poor witnesses, their effect will be misperceived by the jury. Here Pervis took the witness stand and was cross-examined by a very experienced and often unethical, quite frankly, prosecutor. He wasn't prepared for that. He wasn't prepared to have these leading questions coming at him one right after the other. And he didn't know that lawyers ask leading questions that assume facts and those facts be untrue. He didn't know that it could trick him like that. Those facts only become true if you adopt them in your question. His testimony was a disaster by all accounts. He is the embodiment of how we have someone who's at special risk for wrongful execution. And that's why we shouldn't execute him. That's what the Supreme Court said.
Lee Camp
So, besides all the other issues raised, let us focus on this one question of intellectual disability for a moment. If Pervis Payne is intellectually disabled, and if the Supreme Court has ruled that it violates the U.S. constitution to execute someone with an intellectual disability, then why is Pervis Payne still on death row?
Kelley Henry
The problem for Pervis is Tennessee didn't bring their definition of intellectual disability up to scientific standards.
Until 2011, Tennessee has not used the proper definition for intellectual disability. So in 2011, when an opinion called Coleman vs. State where the Tennessee Supreme court clarified “No, no, no, guys, you've been getting this wrong. You know, you need to use clinical judgment. You need to use the professional standards.”
Immediately Pervis was in court, requesting relief to be adjudicated and intellectually disabled. And the courts have said consistently, we don't have a process for you. And in 2016, they actually said, we urge the legislature to adopt a policy that would allow Mr. Payne and others similarly situated to get into court and be adjudicated. Let's put on the proof. If the other side doesn't agree with it, cross examine the witnesses. Every expert who has looked at Pervis has said he's intellectually disabled. Across time it's just a fact.
Lee Camp
So in 2011, they require you to start following widely accepted clinical standards that they had not been following previously. But since Pervis was convicted prior to that date, there's no legal process for him to get back in front of a court to be adjudicated in that regard?
Kelley Henry
Essentially, yes. Mr. Payne stays on death row. Because we don't have legislation that will allow him to get into court to be adjudicated intellectually disabled.
Lee Camp
I'm reminded with this of the commentary noted previously by Pope Francis, he indicted reasoning, which was legalistic. This case seems to be the definition of legalism that even the so-called system itself, a search that it is wrong to execute a man with an intellectual disability. And yet, because the right rule is not in place, then the right thing cannot be done.
Since 2016, the court has been urging the Tennessee state legislature, says Ms. Henry, to set in place a process of adjudication for cases like those of Pervis Payne. Meanwhile, he remains on death row. Currently House Bill 0001, sponsored by The Tennessee Black Caucus of Legislators, is awaiting its day before the Tennessee state legislature in hopes of stopping the execution of Pervis Payne. But the clock is still ticking toward an execution date. Kelley Henry's disposition at this late hour:
Kelley Henry
I would just say that I remain hopeful. This case is the reason I went to law school, having the honor and privilege to represent people like Mr. Payne. And quite frankly, I feel like I represent his whole family.
Lee Camp
And Rolanda Holman:
Rolanda Holman
Even when I get a little shaky, I rely on my hope because hope tells me that it is the anticipation, the expectation that something good is going to happen. And then it tells me that it is the assurance that it hasn't happened yet, but it will. So for me, I rely heavily on my hope that something good is going to happen.
So as long as he has breath in his body, there is an opportunity to turn the hand of justice in his favor.
Lee Camp
We've been talking to Rolanda, Holeman, sister of Pervis pain and Kelley Henry counsel for Pervis Payne. Thank you so much for your time today and your work on behalf of Pervis and a love for Pervis and for a half of justice.
[“Wayfaring Stranger” plays]
Lee Camp
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