The Commercial Appeal

What Pervis Payne needs to prove to escape execution under new TN law

- Katherine Burgess Memphis Commercial Appeal USA TODAY NETWORK – TENNESSEE COMMERCIAL APPEAL

If Pervis Payne is determined to have an intellectu­al disability, he could be saved from execution.

But first he will face a week-long hearing in which experts, his family and others will testify about his life, his problemsol­ving abilities, his social skills and more. The hearing will be the first in Tennessee to utilize a new law passed in April that created a mechanism to allow death row inmates to appeal their sentences on grounds of intellectu­al disability.

Court documents and status hearings have provided a glimpse into what can be expected that week, starting Dec. 13, including Payne's defense team calling national experts to testify. The state is expected to call its witness, Dr. Tucker Johnson, who is currently working on her own evaluation of whether Payne has an intellectu­al disability.

If Judge Paula Skahan determines that Payne is intellectu­ally disabled, his legal status wouldn't change immediatel­y, as either side has the right to appeal.

“While any appeal is ongoing, he remains on death row. His status as a death row inmate would not change. It's only after a final decision in his favor that he would be removed from death row,” said Kelley Henry, Payne's attorney. “The appeal itself could last years.”

If the state were to agree that Payne has an intellectu­al disability and request that Payne's death sentence be set aside, he would only then be moved off death row. Johnson, the state's expert, is still conducting her research.

The Shelby County District Attorney General's Office declined to make Steve Jones, the assistant public defender handling the case, or Johnson available for interviews for this story.

In the past, the District Attorney General's Office has said that Payne's IQ was 78 at the time of the crime.

Payne, who is being held on death row in Riverbend Maximum Security Institutio­n in Nashville, is convicted of the 1987 deaths of Millington woman Charisse Christophe­r, 28, and her 2-year-old daughter, Lacie. Christophe­r's 3-year-old son, Nicholas, survived multiple stab wounds in the brutal attack that took

place in Christophe­r's apartment.

Payne has maintained his innocence. In his 1988 trial, Payne said that he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment.

He said he bent down to try to help, getting blood on his clothes and pulling at the knife still lodged in Christophe­r's throat. When a white police officer arrived, Payne, who is Black, said he panicked and ran, fearing he would be seen as the prime suspect.

Expert evaluation­s

In Atkins v. Virginia, the U.S. Supreme Court held that executions of “mentally retarded” criminals are “cruel and unusual punishment­s” prohibited by the Eighth Amendment.

An expert who testified for the government in Atkins v. Virginia was clinical psychologi­st Dr. Daniel Martell.

Martell also examined Payne over two days in 2019 for approximat­ely nine hours at the Riverbend Correction­al Facility in Nashville, where Payne is held on Death Row. He also reviewed dozens of background records, including Payne's school records, other intellectu­al disability test forms and affidavits and declaratio­ns from acquaintan­ces, friends and family of Payne.

He concluded, according to documents filed in court by Payne's attorneys, that Payne “has significantly subaverage intellectu­al functionin­g,” “exhibits significant deficits or impairment­s in all three domains of adaptive functionin­g” and “meets all of the criteria for Intellectu­al Disability pursuant to Atkins v. Virginia.”

Payne has also been evaluated by former Vanderbilt University professor Dr. Daniel Reschly, who also concluded that Payne is intellectu­ally disabled, according to documents filed in court.

“Dr. Martell reviewed all of Mr. Payne's adaptive behavior data, including the testing discussed above, and opined that Mr. Payne has significant deficits,” read Payne's intellectu­al disability petition. “His opinion is based on solid data. Dr. Reschly concurs.”

Both Martell and Reschly will be testifying in December, Henry said.

The court will also likely hear from the state's expert, Johnson.

Johnson has met with Payne, reviewed psychologi­cal and educationa­l records and will speak with people who knew Payne growing up in order to create her own evaluation of whether Payne has an intellectu­al disability.

“I need to look at as many records that I can to look at, as many samples of behavior as I can across the lifespan,” Johnson said in a hearing earlier this year. “I will not rely on any one set of records or any one person's set of observatio­ns. I'm looking for a total picture, if you will.”

What clinicians look for

Payne's team plans to call Dr. Marc J. Tasse, an author of The American Associatio­n on Intellectu­al and Developmen­tal Disabiliti­es' (AAIDD) manual on diagnosing intellectu­al disability.

The AIDD defines intellectu­al disability as “a disability characteri­zed by significant limitation­s in both intellectu­al functionin­g and in adaptive behavior, which covers many everyday social and practical skills” and says that the disability originates before the age of 22.

“He'll testify not as someone who has seen Pervis, he won't have performed an evaluation of Pervis or really have looked at any of the documents, he's just to come in and provide the straight-up objective baseline; this is what we as clinicians look for in the field so the judge has that basis with which to frame the rest of the testimony,” Henry said.

Intellectu­al functionin­g refers to “general mental capacity, such as learning, reasoning, problem-solving, and so on,” according to the AAIDD, while adaptive behavior “is the collection of conceptual, social, and practical skills that are learned and performed by people in their everyday lives” including language, number concepts, gullibilit­y, activities of daily living, use of money and more.

“But in defining and assessing intellectu­al disability, the AAIDD stresses that additional factors must be taken into account, such as the community environmen­t typical of the individual's peers and culture,” reads the AAIDD website. “Profession­als should also consider linguistic diversity and cultural differences in the way people communicat­e, move, and behave. Finally, assessment­s must also assume that limitation­s in individual­s often coexist with strengths and that a person's level of life functionin­g will improve if appropriat­e personaliz­ed supports are provided over a sustained period.”

Lay witnesses speak to adaptive behavior

The Tennessee bill passed in April has three prongs to its definition of intellectu­al disability. Intellectu­al disability is defined as “significantly subaverage general intellectu­al functionin­g,” “deficits in adaptive behavior” and “must have manifested during the developmen­tal period, or by eighteen (18) years of age.”

“The petitioner has the burden of demonstrat­ing intellectu­al disability by a prepondera­nce of the evidence. … All three criteria must be satisfied before a finding of intellectu­al disability may be made,” wrote Skahan, the judge, in a ruling earlier this year.

Adaptive behavior is one of the reasons lay witnesses will be called, including Payne's sister Rolanda Holman and his father Carl Payne, said Henry.

In affidavits attached to court documents filed previously, Holman, who is seven years younger than Payne, said Payne struggled academical­ly.

“She describes how he could only follow instructio­ns that were short and simple,” one document reads. “Mr. Payne could not comprehend complex questions.”

Although Payne attended school through the 12th grade, he dropped out after failing the Tennessee Proficiency Exam five times. The exam is based on an eighth or ninth-grade proficiency level.

Carl Payne said in an affidavit that his son was developmen­tally delayed, learning to walk and talk later than his siblings.

“He could not fix meals for the family or do his own laundry,” the document reads. “Carl Payne describes Pervis Payne's vocabulary as limited.”

Upon entering prison when he was 20, Payne was diagnosed as “mentally retarded.”

It is likely that the court will also hear from Payne's previous employer at a Pizza Hut and other witnesses.

Katherine Burgess covers county government and religion. She can be reached at katherine.burgess@commercial­appeal.com, 901-529-2799 or followed on Twitter @kathsburge­ss.

 ?? JOE RONDONE/THE ?? Pervis Payne listens arguments for a motion regarding his intellectu­al disability claim at Shelby County Criminal Court on Friday, July 16, 2021. Payne was convicted of murder in a 1988 trial of the deaths of Millington woman Charisse Christophe­r, 28, and her 2-year-old daughter, Lacie. The petition, filed this May in Shelby County Criminal Court, argues that Payne is ineligible for the death penalty due to his intellectu­al disability.
JOE RONDONE/THE Pervis Payne listens arguments for a motion regarding his intellectu­al disability claim at Shelby County Criminal Court on Friday, July 16, 2021. Payne was convicted of murder in a 1988 trial of the deaths of Millington woman Charisse Christophe­r, 28, and her 2-year-old daughter, Lacie. The petition, filed this May in Shelby County Criminal Court, argues that Payne is ineligible for the death penalty due to his intellectu­al disability.
 ?? RONDONE/THE COMMERCIAL APPEAL JOE ?? Carl Payne and Rolanda Holman, the father his sister of Pervis Payne, gather outside the courtroom after a hearing for a motion regarding Pervis' intellectu­al disability claim at Shelby County Criminal Court on Friday, July 16, 2021.
RONDONE/THE COMMERCIAL APPEAL JOE Carl Payne and Rolanda Holman, the father his sister of Pervis Payne, gather outside the courtroom after a hearing for a motion regarding Pervis' intellectu­al disability claim at Shelby County Criminal Court on Friday, July 16, 2021.

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