An expert testified Tuesday that evidence from a 1987 crime could be used to develop a DNA profile to identify the assailant who killed a 28-year-old Millington woman and her 2-year-old daughter.
And if that happens, Pervis Tyrone Payne's attorneys argued, Payne could be exonerated 33 years after he was convicted of stabbing Charisse Christopher and her daughter Lacie to death and wounding Christopher's 3-year-old son Nicholas.
Payne is scheduled to be executed Dec. 3, but his attorneys, including representatives from national legal group The Innocence Project, have requested that evidence from the crime scene be tested for DNA.
Judge Paula Skahan heard arguments regarding the petition for testing Tuesday in Shelby County Criminal Court. She will rule on the petition Sept. 16.
"My brother has never lost his faith," Rolanda Holman, Payne's sister, said after the hearing. "Although it’s been 33 years, we feel the truth is coming on the scene, we feel the truth is coming with power and authority and we’re going to roll with the truth until it sets him free.”
“We also understand it’s not over until God says it’s over. We trust God all the way. He promises us he will supply not some of our needs, but all of our needs according to his riches and glory," said Carl Payne, Pervis Payne's father. “We don’t believe that he brought us this far to leave us.”
Payne was at the crime scene but maintained innocence
During his 1988 trial, Payne said he discovered the gruesome crime scene after hearing calls for help through the open door of the apartment.
Payne is intellectually disabled and had no prior criminal history, according to his attorneys.
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.
His attorneys are asking for multiple items from that scene to be tested.
After reviewing the complete crime scene video from the case, Payne’s attorneys withdrew a request to test bedding that had been recently discovered. They now agreed that the bedding actually came from another case, said Kelley Henry, federal public defender who is representing Payne. However, they still wanted numerous other items tested that all agreed came from the Payne case and had never been tested for DNA evidence.
That evidence includes the knife, a tampon, glasses found at the murder scene, a blood-soaked rug and more.
Tuesday, Payne’s defense detailed multiple issues with how evidence has been maintained over the years, including missing fingernail scrapings taken from Christopher that at Payne’s original trial were shown to contain biological material not related to Christopher. Henry said she has not seen the chain of custody indicating what happened to those scrapings.
If those fingernail scrapings still exist, blood, semen or skin tissue underneath them is “certainly capable of being tested and determining whether there is DNA foreign to the victim and that DNA can be compared to any person of interest,” testified Alan Keel, supervisor of forensic biology and DNA analysis unit at the Forensic Analytical Crime Laboratory in California.
Henry also asked Lt. Christopher Stokes of the Millington Police Department about an empty envelope inside a larger envelope of evidence from the crime. The empty envelope, which is marked with the address of the crime scene, was included as evidence. Henry also mentioned that clothing worn by the victims on the day of the crime is not in evidence and has no chain of custody.
Keel also testified about how he could conduct DNA testing on the other items that have been kept in storage since Payne’s 1988 trial.
He has personally worked on around 150 post-conviction DNA cases in his laboratory, Keel said, with about half resulting in exonerations. Some have resulted in a suspect being identified through the FBI CODIS database, he said.
The remaining evidence in the Payne case could be analyzed to develop a DNA profile and then compared to the 19 million profiles within the CODIS database to identify the assailant, Keel said.
Steve Jones, assistant district attorney, questioned whether it was possible to determine if DNA discovered on an item had come from the actual crime scene, or if the DNA had been placed there prior to the crime or while the evidence was handled during court proceedings or while in evidence storage.
“You discover and identify DNA, but you don’t discover and determine whether that DNA is from the killer, the assailant or anybody else. Is that fair to say?” Jones asked.
“We may be able to associate a profile to a known person, we may or may not be able to get a hit to a known person in CODIS and we go from there,” Keel said. “That’s all we can do.”
Payne’s attorneys have argued that if a male DNA profile were found across the pieces of evidence, it could point to someone other than Payne. There would be no other reason for a man’s DNA to be under the victim’s fingernails, on her tampon and on the murder weapon, they’ve argued, unless he was the assailant. And if that DNA doesn’t match Payne, they argue, it could exonerate him or even point to a different suspect.
Advocates urge for DNA testing in Payne case
Payne's case has drawn a large coalition of advocates urging for the evidence to be tested and comparing his scheduled execution to the historic lynchings of Black men.
On Monday, a coalition gathered to urge the DNA testing and to ask Tennessee Gov. Bill Lee to commute Payne's sentence. The coalition, spearheaded by the Ben F. Jones Chapter of the National Bar Association, included the National Council of Negro Women (Memphis Chapter), Stand for Children Tennessee, Just City, the Tennessee Black Caucus of State Legislators and representatives from the Church of God in Christ, of which Payne is a member.
Tuesday, state Rep. G.A. Hardaway, D-Memphis and attorney LaTrena Ingram, co-chair of the Ben F. Jones Chapter of the National Bar Association’s legal justice task force both attended the hearing.
Several of Payne's family members were also present at the hearing Tuesday, although Payne himself attended via video link from The Riverbend Maximum Security Institution in Nashville.
Presumption of exoneration
Attorneys also argued whether the law has changed since Payne last requested DNA testing in 2006.
Vanessa Potkin, director of post-conviction litigation at the Innocence Project, said four criteria must be met for the trial court to order DNA testing, including that the court is required to presume that the testing will be favorable to the defendant and that the application for testing is not made for delay.
Jones argued that in 2006, the court already presumed that the DNA testing would be favorable to Payne, yet still decided not to test. And, he argued, Payne's attorneys waited until four months and a week before the scheduled execution to bring this new petition, an attempt to delay.
If the court decides to grant DNA testing, there will inevitably be an appeal decision and thus a delay, he said.
“They’ve had their day in court on this,” Jones said.“The jury heard the defendant testify,” Jones said. “His own testimony at trial was that he was at the crime scene and he had his hand on the knife at Charise Christopher’s throat and he pulled it out.”
Payne’s attorneys argued that while the presumption that DNA testing would be exculpatory had previously existed, the law change defined what that meant and said that changing technology should not just be used to identify perpetrators, but to secure exonerations.
“Powers does change everything,” Potkin said, referring to the 2011 court decision. “The state is reading requirements into the statute that simply don’t exist.”
Katherine Burgess covers county government, religion and the suburbs. She can be reached at katherine.burgess@commercialappeal.com, 901-529-2799 or followed on Twitter @kathsburgess.
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