EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, January 20, 2021

The Pervis Payne Case Comes Full Circle

In its 1987 opinion in Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court "conclude[d] that the introduction of a [victim impact statement] at the sentencing phase of a capital murder trial violates the Eighth Amendment." Four year later, the Court changed course. In Payne v. Tennessee, 501 U.S. 808 (1991), Pervis Payne was convicted of (1) the first-degree murders of 28-year-old Charisse Christopher and her 2-year-old daughter Lacie; and (2) assault with intent to commit murder in the first-degree against Charisse's 3-year-old son Nicholas.

At the sentencing phase of trial,

The State presented the testimony of Charisse's mother, Mary Zvolanek. When asked how Nicholas had been affected by the murders of his mother and sister, she responded:

“He cries for his mom. He doesn't seem to understand why she doesn't come home. And he cries for his sister Lacie. He comes to me many times during the week and asks me, Grandmama, do you miss my Lacie. And I tell him yes. He says, I'm worried about my Lacie.”

In upholding the admission of this testimony, affirming Payne's death sentence, and overruling Booth, the Supreme Court held

that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.

But questions have lingered for decades over whether Pervis Payne actually committed the crimes for which he was convicted. And now DNA testing seems to establish his innocence.

According to the State, Payne entered Charisse's apartment and fatally stabbed Charisse and her daughter (and non-fatally stabbed her son). Payne counters that he was at his girlfriend's apartment complex, waiting for her to return from a trip, when he heard sounds of distress coming from Charisse's apartment. Payne then entered the apartment to see that Charisse and her children had been stabbed. A knife was still lodged in Charisse's throat, and Payne started to try to dislodge it, but nicked finger as he grabbed the hilt "beneath the handle, cutting himself on the blade."

There have always been questions about Payne's guilt, including his lack of a criminal record or motive to commit the crime. Moreover, there are questions about whether Payne could be executed given that he has intellectual disability. Nonetheless, Payne was scheduled for execution on December 3rd and would likely be dead today if not for COVID-19, which led Govern0r Bill Lee to delay his execution until April 9th

That reprieve allowed DNA testing to proceed on the knife found in Charisse's throat. And, as his attorney Kelly Henry argued yesterday, the results of the testing were completely consistent with Payne's claim of innocence. Payne's DNA was found on the hilt of the knife, but the degraded DNA of an unknown male was found on the handle. According to a statement by Payne's legal team and the Innocence Project,

“The DNA testing results are consistent with Pervis Payne’s long-standing claim of innocence. Male DNA from an unknown third party was found on key evidence including the murder weapon, but unfortunately, is too degraded to identify an alternate suspect via the FBI’s database. We continue to find it frustrating and disturbing that the State still has no explanation for how key pieces of DNA evidence that could conclusively prove who committed this crime — including the victim’s fingernail clippings — have gone missing. Today’s results make crystal clear that it would be a gross miscarriage of justice for Tennessee to execute Pervis Payne.”...

In recent troubling developments, the State is currently unable to find any of the evidence most likely to contain sufficient perpetrator DNA — including the victim fingernail scrapings. The existence of this critical evidence had been confirmed in writing by the district attorney in late July 2020. Yet, mere months later, at the September hearing on DNA testing, prosecutors declared this evidence missing, and offered no further explanation.

This missing evidence, especially in tandem with poor documentation of the crime scene and concerns that racial bias may have tainted the investigation, underscores the already significant reasons to believe Mr. Payne’s innocence and halt his execution.

Somehow, however, this was not enough for Criminal Court Judge Paula Skahan, who "said the presence of another person's DNA on the weapon wasn't enough to prove Payne's innocence. 'Nothing exonerated Pervis Payne. Nothing,' the judge said. This is only the start of the legal fight, and I'm confident that fight will not end with Payne's execution.



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