What Pervis Payne needs to prove to escape execution under new TN law
If Pervis Payne is determined to have an intellectual disability, he could be saved from execution.
But first 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 first 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 final 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 Office 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 Office 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 officer 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 testified 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 affidavits and declarations from acquaintances, friends and family of Payne.
He concluded, according to documents filed in court by Payne's attorneys, that Payne “has significantly subaverage intellectual functioning,” “exhibits significant deficits 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 filed in court.
“Dr. Martell reviewed all of Mr. Payne's adaptive behavior data, including the testing discussed above, and opined that Mr. Payne has significant deficits,” 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 defines intellectual disability as “a disability characterized by significant 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 field 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 defining 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 differences 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 definition of intellectual disability. Intellectual disability is defined as “significantly subaverage general intellectual functioning,” “deficits 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 satisfied before a finding 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 affidavits attached to court documents filed 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 Proficiency Exam five times. The exam is based on an eighth or ninth-grade proficiency level.
Carl Payne said in an affidavit that his son was developmentally delayed, learning to walk and talk later than his siblings.
“He could not fix 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.