WTI Members Ask Gov Lee to Grant Pervis Payne Clemency in Support Letter
September 28, 2020
Dear Governor Lee,
We are four members of Witness to Innocence, an organization of exonerated survivors of death row. Each of us was wrongfully sentenced to death in a different state, but three of us now live in Tennessee. We write to urge you to commute the sentence of Pervis Payne, who faces execution on December 3, 2020. Mr. Payne is a person with intellectual disability whose execution would violate the Constitution. The prosecution exploited racial bias in pursuit of his conviction and death sentence. And – most significant to us – he has always proclaimed his innocence. While he now awaits the results of DNA testing that the court recently authorized, the State is mysteriously unable to account for some of the most significant pieces of forensic evidence that, if tested, could substantiate Mr. Payne’s claim of innocence.
We know only too well that innocent people have been sentenced to death in America. Each of us was convicted of crimes we did not commit and spent many years on death row before finally being exonerated. We easily could have been executed before successfully proving our innocence, a nightmare that haunts us still. We plead with you to grant Mr. Payne clemency to ensure that an innocent man is not put to death in Tennessee, the state that three of us are proud to call home.
Through our involvement with Witness to Innocence, we have researched the unfortunate truths about the flaws in our legal system that lead to sentencing innocent people to death. At this juncture, we cannot say with certainty whether or not Pervis Payne is innocent, but we can confidently assert that his case is marred by three significant risk factors for a wrongful conviction: intellectual disability, racial bias and untested DNA evidence.
There is no factual dispute that Mr. Payne is a person with intellectual disability, who should be categorically exempt from execution. Yet he is caught in a procedural gap between the Tennessee courts’ insistence that no procedural mechanism exists for him to present his claim of intellectual disability and the Tennessee General Assembly’s failure to statutorily create such a mechanism. It appears that the General Assembly may be prepared to consider such a bill in the upcoming legislative session, but unless you commute Mr. Payne’s sentence, this will come too late for him.
Nor can there be any dispute that racial bias influenced Mr. Payne’s conviction and death sentence. The crime occurred in Shelby County, which has a long history of lynching Black men for perceived insults to the “honor” of White women. In Mr. Payne’s case, the Shelby County prosecutor concocted a story of a drug-addled and sex-crazed Black man preying on a defenseless White woman, though Mr. Payne had no history of either violence or substance abuse. The prosecutor took pains to highlight the racial issues in the case, repeatedly referring to the victim’s “white skin” before the jury. It is hard to imagine that these themes did not have an unfair impact on the jury that sentenced Mr. Payne to death.
Mr. Payne’s vulnerability as a person with intellectual disability and the prosecution’s exploitation of racial bias set the stage for a wrongful conviction. But the prosecution went further, withholding forensic evidence from Mr. Payne’s lawyers – and the jury – that could have helped prove his innocence and identify the real perpetrator. Just recently, on September 16, the court ordered DNA testing for several pieces of evidence in Mr. Payne’s case, a welcome and long-overdue development. Yet, to our dismay, some of the most significant pieces of evidence in the case, including fingernail scrapings that should contain the DNA of the true perpetrator, are inexplicably unaccounted-for, and the State claims no knowledge of their whereabouts or why they were not meticulously preserved.
The problems in Mr. Payne’s case are frighteningly similar to those found in many of the cases of the 171 men and women who were fortunate to be exonerated before their death sentences were carried out.
- Many of these cases lacked physical evidence directly linking the innocent defendant to the crime, and the case turned on circumstantial evidence and faulty witness testimony. That was true in Mr. Payne’s case, too. The victim was brutally stabbed and sustained numerous defensive wounds, yet there was no evidence of any wounds on Mr. Payne consistent with this violent struggle. Moreover, the crime scene was covered in blood from the close-range, brutal struggle, yet Mr. Payne’s clothing had only a small amount of blood on it, which comported with his account of coming upon the scene after the fact and attempting to help the victim.
- In many wrongful capital convictions, physical evidence that could prove the defendant’s innocence was withheld from the defense and the jury. That is certainly true here, where Mr. Payne has only just received the opportunity to secure DNA testing of numerous items of evidence that could support his claim of innocence.
- Among the 171 people exonerated after a death sentence, for the 90 who are African American, implicit and overt racial bias led many jury members to ignore the doubts raised by weak witness testimony and lack of credible physical evidence, and sometimes even led them to be certain of the defendant’s guilt before the trial began. Not only can racial bias lead juries to ignore reasonable doubt, an African American found guilty of killing a white person – as Mr. Payne was – is three times more likely to be given a death sentence. The prosecutors in Mr. Payne’s case took great pains to play to racial stereotypes of sex-crazed, violent Black men and repeatedly referred to the victim’s “white skin.”
Pervis Payne’s case does not represent due process or equal justice under law. But the serious errors in his case do not have to be fatal ones. We hope you will carefully consider all of the information before you and will commute Mr. Payne’s sentence, ensuring that Tennessee does not execute an innocent man.