Inside: Payne's attorney fights for exoneration.
“I am a lawyer who doesn’t tell lawyer jokes, because I believe that being a lawyer is the highest form of public service that any of us can engage in. It is the gift I was given. And if I can’t use that gift to do what’s right, then maybe it’ll be time for somebody else to step up.”
Kelley Henry represents guilty people.
She has 31 clients on Tennessee’s death row. Most of her work as a federal public defender depends upon her ability to explain why they shouldn’t die despite their horrific crimes.
So when Pervis Payne became her client in 2019, with a Tennessee execution date looming, she said she assumed he committed the murders that put him on death row.
But it quickly became clear Payne was different.
A constellation of red flags emerged, Henry said, as she scrutinized investigative notes, crime scene photos and court transcripts related to the 1987 double murder in the small town of Millington, about 25 minutes northeast of Memphis.
Police settled on Payne as the key suspect after an officer saw him fleeing the scene. But there wasn’t evidence to back up the alleged motive. The handling of the crime scene raised more questions than answers.
In addition, most of her other clients faced abuse and neglect as children, but Payne’s childhood was happy, with a loving and supportive family. He has an intellectual disability and a sweet, demure personality. He has no record of any other violent offenses.
Tests done earlier this year identified another, unknown man’s DNA on the murder weapon. Prosecutors said it didn’t matter, but the bombshell discovery cemented it in Henry’s mind.
“I didn’t expect to have an innocent client with Pervis Payne,” Henry said. “But I do.”
Payne is the first death row inmate to raise an innocence claim since the state resumed executions in 2018.
His case united Henry with the Innocence Project, a contingent of influential Nashvillians and an online army intent on reaching the highest levels of Tennessee government in their quest for justice.
They are pleading for mercy. They want Payne exonerated and released from prison.
Tennessee temporarily delayed executions due to COVID-19, but they are expected to resume. Payne’s pandemicrelated reprieve expired on April 9, and a new execution date can be set.
Henry is used to intense legal fights, with someone’s life and death hanging in the balance.
Now she sees herself as a stand-in for Payne’s mother Bernice, who died in 2004, still fighting for her son.
If she can’t win for Payne, Henry said, she might walk away from the grueling work that has consumed much her adult life.
“I have never felt so strongly about a case,” Henry said, sitting on a colleague’s porch in East Nashville. “He didn’t do this.”
‘Incredibly incompetent’ investigation, attorney says
Henry knew Payne for years before she became his lawyer. She’d see him often when she visited her other death row clients, all of whom live on Unit 2 at Riverbend Maximum Security Institution in Nashville.
Payne, 54, has become a de facto handyman, opening doors for visitors, mopping the floor and moving through the unit freely. He has a gentle nature, she said, Payne cared for one of her clients as he died from cancer.
His affable persona stands in sharp contrast with the horrendous crime that sent him to Unit 2.
Prosecutors say he brutally stabbed and killed Charisse Christopher, 28, and her 2-year-old daughter, Lacie, in their Millington apartment. Christopher’s 3year-old son, Nicholas, survived multiple stab wounds.
An officer saw Payne running from the building, his pants and shoes stained with their blood. Investigators said Payne’s baseball cap was looped around the 2-year-old girl’s arm. His fingerprints were found on a beer can inside the apartment.
Henry said her analysis of the “incredibly incompetent” police investigation casts doubt on nearly every aspect of the prosecution’s case.
She now says she believes the story Payne has told for nearly 34 years.
Innocence claim rests on Payne’s story, missing evidence, new DNA
Payne said he was standing at the doorway of his girlfriend’s apartment June 30, 1987 when he heard cries for help across the hallway.
As he walked into the neighbor’s blood-soaked apartment, he said, he saw Charisse Christopher on the floor struggling to breathe. She had more than 80 stab wounds. A kitchen knife was stuck in her neck.
Payne said he bent down to try to help, getting blood on his clothes and cutting his hand as he pulled at the knife before calling for help. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.
The police quickly apprehended and arrested him.
Henry questioned nearly every element of the evidence in a clemency presentation she submitted to Gov. Bill Lee’s office last fall. Her work got the attention of the Innocence Project, the NAACP and other national advocacy groups.
Prosecutors say Payne read a Playboy magazine, did drugs, and then came to Charisse Christopher’s apartment for sex. They claim he flew into a murderous rage when she refused.
But Henry said police never tested him for drugs, and there was no evidence he saw a Playboy before arriving at the crime scene. Instead, his cousin said, it was a Jet magazine with Eddie Murphy on the cover.
Henry said police admitted to staging the scene for photographs after the bodies and pieces of evidence were moved, including Payne’s hat.
A prosecutor in the case questioned the beer cans that tied Payne to the scene, according to case notes Henry obtained. A note referring to the cans asked “did police plant them?”
Henry’s team also said critical evidence, including vaginal swabs from a rape kit and the victims’ clothing, inexplicably went missing after the murders.
On July 29, 2020, prosecutors said clippings of Charisse Christopher’s bloody fingernails were available for DNA testing. But the clippings suddenly were unaccounted for 34 days later, by Sept. 1, 2020.
Then new DNA testing released this January found an unidentified man’s DNA on the blade and handle of the murder weapon. Payne’s DNA was on the hilt of the knife — he said he nicked himself pulling the knife from Christopher’s neck.
Henry, a defense attorney who has worked on capital cases for more than two decades, said police at the time did not do enough to identify and vet other potential suspects.
She also accused prosecutors of using racially charged language to inflame the jury, mentioning Christopher’s “white skin” and Payne’s “dark hand” during the 1988 trial.
Nashville television personality Rudy Kalis and Republican political strategist Tom Ingram are among the prominent local figures joining Henry in her fight.
Their work is garnering national attention. Videos echoing Payne’s claims have millions of views on Tiktok. His name is a trending topic on Twitter, powered by interest from celebrities and activists.
Lee, as governor, can examine the case and take Payne off death row. He has not granted any inmates clemency during his term.
Lee’s office said the governor is reviewing Payne’s clemency claim.
Pleas for mercy from other death row inmates failed to get traction, but an influential Tennessee Republican told Lee the Payne case deserves another look.
Rep. Jeremy Faison, the House GOP Caucus chairman, sent Gov. Bill Lee a text message last year after reading a news story about the case.
“I just said, ‘I don’t know if this was handled right. What are you thinking?’” Faison recalled.
Faison hasn’t made a specific recommendation to the governor, but he said lingering questions about Payne’s conviction should be thoroughly studied before a death sentence is carried out.
“There’s probably more to the story than what we’ve been told,” Faison said.
Lawmakers pursue parallel effort
While Henry builds the case for Payne’s innocence, state legislators scramble to write a new state law to allow Payne to avoid the execution chamber because of his intellectual disability.
Payne’s legal team says there is ample evidence Payne has a particularly low IQ.
After Payne was convicted, Tennessee passed a law making it illegal to execute someone with an intellectual disability. But current Tennessee law does not allow Payne to raise the issue retroactively.
In a 2016 ruling in Payne’s case, the Tennessee Supreme Court said lawmakers should consider a legal fix to give courts the ability to evaluate a death row inmate’s mental competency after their conviction.
The Tennessee Black Caucus of State Legislators is pushing legislation this year to do just that. It is pending in committee.
The bill has support from Ken Starr, a former judge and independent prosecutor who investigated former President Bill Clinton, and other legal leaders.
On Tuesday, the Metro Council voted to support the bill and push for clemency for Payne.
Attorney fights because ‘I don’t have any other choice’
Henry, 54, is a leading force in the national fight against capital punishment, taking her cases all the way to the United States Supreme Court and representing death row inmates across five states.
Her work is at a feverish pace since Tennessee resumed executions in 2018.
While most of Henry’s efforts ultimately end in an execution chamber, she continues on.
Her allies in the legal field note her tenacity and resilience. The American Bar Association recognized her work in 2019, giving her the John Paul Stevens Guiding Hand of Counsel Award.
Henry said Payne’s case could represent a bright red line in her career.
Payne and his relatives are now family to her. When she got COVID-19 last year while working on another inmate’s case, Payne’s sister Rolanda Holman came to her home with vegetable beef soup.
“They took care of me because that’s who are, and I can’t walk away from them,” Henry said. “I don’t have any other choice but to do everything I can for this family.”
The prospect of failing them is too much to bear. If her quest falls short and Payne goes to the execution chamber, she said, she might not be able to do it anymore.
“I am a lawyer who doesn’t tell lawyer jokes, because I believe that being a lawyer is the highest form of public service that any of us can engage in,” Henry said.
“It is the gift I was given,” she continued. “And if I can’t use that gift to do what’s right, then maybe it’ll be time for somebody else to step up.”
Natalie Allison contributed to this report.
Kelley Henry, attorney for Pervis Payne