Comparative Law, Constitutional Law, Criminal Law, Evidence, Murder, Police and Prosecutors, True Crime

Pervis Payne and “Innocence Inflation”

A commenter named Elizabeth posted a thoughtful counter to my post on the Pervis Payne case. I thought I’d hoist it and respond point by point:

It seems about as likely as the idea that a guy with no history of violence, no history of drug use, no criminal history whatsoever, described by everyone who knew him as a kind and gentle man who’d do anything to help anyone, one day randomly chose to get so high on cocaine that he decided to try and massacre a whole family, then immediately after his arrest returned to someone described by everyone as a kind and gentle man who goes out of his way to be helpful. Even prison staff say he’s one of the most good-natured and well-behaved inmates they’ve ever seen.

These are all interesting observations which would support a petition for clemency to take Payne off death row, but they’re irrelevant to his guilt. He was spotted literally minutes after the murder covered in the victims’ blood, and he ran away from the cops. The story he told at trial was absurd, which is itself proof of his guilt. There are hundreds of indisputably guilty people in prison who are kind and gentle and helpful, and who prison guards like and respect. That doesn’t mean they’re innocent. Murderers in fact have some of the lowest recidivism rates, because their crimes are often driven by relationship factors which are unlikely to crop up again.

If you’ve worked on these kinds of cases, you must know how difficult it is to overturn a conviction after it’s happened. You need more for an appeal than you do reasonable doubt in a trial. Lots of little things aren’t enough. And it’s extra difficult here, because so much of the physical evidence was tampered with/destroyed/has mysteriously disappeared/was never even collected in the first place.

I have worked on these cases and am well aware that overturning a conviction on appeal is difficult. It’s supposed to be difficult. I am also a comparative lawyer who has studied criminal justice systems from across the entire world intensively. Every criminal justice system in the world has similar rules, and many of them (including Germany) are stricter than the United States’. Here’s an interview in which Germany’s leading post-conviction appeals lawyer warmly praises American law, which permits many more opportunities to challenge convictions than German law does. (Of course, German prison sentences are much shorter than American ones, but still, American offers convicts more opportunities to challenge them.)

Why do these rules exist literally everywhere that has a functioning criminal-justice system? Because people really don’t like going to prison. They will do almost anything to try to prevent this, including falsely claiming innocence. And once they’re inside, many of them will file appeal after appeal, either with the help of lawyers or on their own. So every criminal justice-system has rules which provide that a convicted defendant must come up with compelling new arguments or evidence to overturn their conviction.

In global comparison, the United States is generous in providing appeals to defendants in serious crimes — it provides every one of them with a court-appointed lawyer for their direct appeal, and ample opportunities to introduce new evidence after conviction, and increasing access to post-conviction DNA testing. But, like all other countries, it also has rules which safeguard properly-obtained convictions against second-guessing.

In my view, Payne’s allegations don’t come near the standard required. “Lots of little things” aren’t enough, and they shouldn’t be enough, since “lots of little things” have gone wrong in every trial ever held. Only when those “little things” cohere to create a plausible, convincing case for the defendant’s innocence does the defendant prevail, and this is a pretty sensible rule, I find.

When the Supreme Court banned the execution of the intellectually disabled, it said part of the reason was that intellectually disabled defendants are more susceptible to coercive interrogation techniques to the extent that they incriminate themselves without realising, that they are less able to assist their own lawyer, and that they may suffer because of prejudices of the jury, who may misinterpret their expressions and reactions (or lack of) as signs of guilt or lack of remorse when they’re actually symptoms of their adaptive deficits. All of that can contribute to wrongful convictions.

Payne was on the margins of intellectual disability, a mild case. This got him off death row, which I think is great. Yet once again, how does any of this prove that the man seen running from the victims’ apartment minutes after their murders, covered in their blood, was in fact not guilty of the crime? These kinds of arguments prove too much because they’re based on a faulty generalization: Because some people with intellectual disabilities may face these obstacles in some trials, this means that Payne faced them in his own trial. How do we know? Where’s the specific, admissible proof? What’s the endpoint of this argument? That nobody with an intellectual disability should be put before a jury trial, because of the danger of misinterpretation? That they shouldn’t be held accountable at all?

I’m afraid I see claims about “systemic” or “historical” influences as hand-waving, not real arguments. They have no relevance to this specific case unless this relevance is proven by convincing evidence. Here, the jury obviously convicted Payne because the evidence was hugely against him, and because his story made no sense. He could have had an IQ of 130 and been convicted. Jens Söring, for that matter, did, and was.

His clemency petition cites several other examples of people wrongly accused and convicted of murder after finding a crime scene and getting blood over themselves when they approached the body. It does happen. And it’s one thing for police to be sceptical of Pervis Payne’s account, another to basically refuse to investigate if any of it could be true or even consider alternative suspects.

I’m sure it has occasionally happened that people got covered in the victims’ blood while trying to help them, and then got convicted on that basis. However, I’m equally sure that the overwhelming majority of people who were convicted of murder because they were caught red-handed drenched in the victims’ blood were in fact guilty. Once again, just because something can happen doesn’t mean it did happen to Payne. So, in my view, this is more hand-waving. I’m also hardly convinced that the police should have spent much time pursuing alternate suspects other than the guy who was seen leaving the victims’ apartment drenched in the victims’ blood minutes after their murders. This wasn’t exactly a whodunit. Charisse Christopher’s apartment wasn’t Grand Central Station.

Have other people come forward with information about possible alternate suspects? Sure, but this happens in every single high-profile murder case. After decades of non-stop litigation and frequent news coverage, thousands of people come forward with hearsay, gossip, and speculation about potential alternate suspects. You can read May God Have Mercy, which is an entire book full of evidence about potential alternate suspects and “suspicious” problems with the police investigation in the case of Ronald Keith Coleman, who loudly protested his innocence literally until his last breath. All of them turned out to be irrelevant, as a later DNA test confirmed Coleman’s guilt.

Most of these statements are worthless, either because the witness is lying, biased, mistaken, publicity-hungry, mentally unstable, or just has a bad memory. It would take an extremely convincing showing to cast doubt on someone other than the guy who was seen drenched in the victims’ blood minutes after their murders. And Payne hasn’t shown me anything yet which would convince me he wasn’t the one.

The Innocence Project page you linked is about creating a brief summary that people can quickly read to get the major points. The intellectual disability claim gets more attention because it’s the most recent development and it’s what got him off of death row. There are other pages about him on the site with more about the DNA testing, the missing physical evidence, the lack of motive and other details.

Where? I’ve searched the site and found no more than a letter from an MLK relative and stuff relating to Payne’s intellectual disability. I’ve also entered dozens of permutations into Google trying to get to the original, unedited pro-Payne documents and arguments and found almost nothing. What’s stopping the Innocence Project and/or Payne’s lawyers from simply posting all of its public court filings online? The prosecution has done just this for many of the appeals, you can read one of their filings here. The prosecution is obviously not afraid of letting anyone with an Internet connection kick the tires of its arguments. Why aren’t Payne’s lawyers that confident?

As for racism, I don’t know why the prosector would spend so much time describing Charisse Christopher’s white skin if he wasn’t trying to emphasise her purity and innocence in contrast to the dark-skinned black man accused of killing her.

If this was so obviously racist, then why wasn’t it be successfully challenged in court?  Where is the specific citation to the record, including the entire context, which would permit the reader to form an independent conclusion as to whether these remarks (assuming they indeed exist) were indeed motivated by racism, instead of dozens of other possible factors? Once again, Payne’s lawyers could help us out here by providing a complete, full citation to the record of exactly when and in what context these remarks were made. The fact that they haven’t speaks volumes: They want us to accept their spin, but won’t give us access to enough information to determine whether their spin is fair and accurate. I decline.

It’s not like violent and institutionalised racism was a thing of the distant past in the 1980s. The last recorded lynching in Tennessee was in 1940, which was probably within the lifespan of some of the people in that courtroom. Segregation was still in place until the 1960s. And the jury selection process in America does not have a great history when it comes to weeding out bias and ensuring a fair and balanced jury – another former Tennessee death row inmate, Abu-Ali Abdur Rahman just had his 1986 death sentence replaced with a life sentence because of prosecutorial misconduct, including racism in jury selection.

I find these arguments once again to be invalid generalizations, hand-waving. Perhaps someone who was born in Tennessee in 1939, and who was thus alive when the last lynching occurred there, did serve on Payne’s jury or work on his case. What does that prove? As for the American jury process, one can go back and forth on it, and I have, in public, many times. But I would argue that in its modern form, it does a reasonably good job of weeding out bias.

Again, the US system has far better procedural safeguards than most other countries with jury systems. English juries are traditionally chosen almost totally at random, with the judge only summoning a few more jurors than will eventually sit, and there is no chance for the lawyers to probe their potential biases:

In longer and more complex cases questions can by asked of potential jurors by asking them to fill out a questionnaire. However, there is no equivalent to US-style jury selection where jurors are questioned by legal representatives before being accepted onto a jury.

In the United States, by contrast, the court calls “panels” of 50 potential jurors who are then, in capital cases, interviewed extensively, often individually, for hours by the judge and both defense lawyers. The defense and prosecution can remove biased jurors for cause, and each side can remove 15 other jurors with ‘peremptory’ challenges which they do not have to explain. During these juror examinations, jurors will be acquainted with all relevant facts of the case, asked about their backgrounds, and repeatedly admonished not to permit any form of prejudice to affect their decision. It often happens that both sides question all 50 of the initial jurors and only end up with 6 jurors at the end of the process. Thus, to get to 12, another panel of 50 jurors is called, and so forth until you have a jury of 12 members, usually plus at least 2 alternates in case one of the 12 gets ill or is removed.

These safeguards are light-years more sophisticated and thorough than those in any other country in recorded history. By and large, they work quite well. After all, American criminal juries have handed down verdicts in several major cases last year (Rittenhouse, Chauvin, etc.) that most observers found to be eminently sensible. Of course, biased jurors do sometimes slip through, and either or both sides sometimes succeed in evading the safeguards against discrimination. But these are exceptions which prove the rule. Activists have this habit of relentlessly focusing on the times the justice system has derailed, while completely ignoring the overwhelming majority of cases in which the justice system gets the right guy.

Further, where’s the endpoint of this argument? Should Tennessee be debarred from prosecuting black defendants, no matter how strong the evidence, until everyone alive at the last lynching is deceased? Or until “institutional racism”, however it’s defined, is finally ended?

I don’t know for sure if Pervis Payne is innocent, and I’m not sure if it’ll ever be proved to standard acceptable to a court, but I am certain that the investigation was deeply flawed, and I don’t remotely trust a DA with such a history of misconduct to give any innocence claim a fair hearing.

Nobody can ever know for sure whether Payne is innocent, but this is true of all crimes in which there were no living witnesses or recordings. There are thousands of people in Germany, the UK, and all other nations on earth imprisoned based on circumstantial evidence — almost always much weaker than the evidence in Payne’s case. As for Payne’s innocence claims, the DA isn’t the one who decides them — that would be grossly unconstitutional. Judges decide those claims, and their decisions are subject to further review on appeal — appeals which are always taken in capital cases.

My main point is that the Innocence Project is squandering its resources and credibility on cases which simply aren’t innocence cases. They even have Steven Avery on their list of potential innocents. They sometimes seem to be willing to let political and ideological considerations influence which cases they choose. I think that will, in the end, prove damaging to their credibility, and thus to their clients.

4 thoughts on “Pervis Payne and “Innocence Inflation””

  1. There’s being a kind and gentle inmate, and then there’s being someone who’s never shown even the slightest capacity for violence before or since. There’s being a well-behaved inmate, and then there’s being someone who hasn’t broken even the tiniest rule in over 30 years. There’s being helpful, and there’s being willing to put yourself in danger for someone else (tending to an injured guard during a violent incident). From the way the warden talked about Pervis Payne at sentencing, he’s considered remarkable by any standard. Every person who has spent any length of time with him, including the people with the most reasons for scepticism (the ones who work with definitely guilty death row inmates every day, and the definitely guilty death row inmates themselves), believes in him. And, independent of his guilt or innocence, it helps explain why so many people support him so fervently.

    What, exactly, is absurd about his story?

    That he got covered in blood when he found the body and tried to help? He’s not the first or last person to whom that’s happened.

    That he didn’t know what to do, to the extent he couldn’t even remember how to call 911? His intellectual disability (not intellectual disability generally, but his, specifically, as shown from the information in the intellectual disability petition and confirmed by both prosecution and defence experts) includes not being able to remember basic facts, trouble processing new information or responding to unfamiliar situations, and a general difficulty with his reasoning skills.

    That he ran from the police? Scared people do that, even when they’re innocent.

    You’re right, murderers are unlikely to kill again. If we’re talking likelihoods, murderers who are otherwise morally upstanding people who commit a single, moment of madness murder that is completely out of character for them generally admit what they’ve done (maybe not explicitly murder, but being involved in the killing) and express remorse. Murderers who try and massacre an entire family in a drug-fuelled rampage usually have at least some history of violence or drug use. Murder victims, especially murder victims stabbed dozens of times with all the personal rage and hatred that implies, are most likely to have been killed by someone close to them, not someone they maybe passed in the corridor sometimes. Pervis Payne doesn’t fit any of the likely models.

    I know murderers have low recidivism rates, but you can’t say that Pervis Payne’s good conduct is because the specific relationship factors of the crime are no longer present, because there were no relationship factors in the first place. There was no motive. That’s why the prosecution’s theory that he was high on cocaine and looking at pornography was so important, because it was the only way they had to explain why someone of good character with no violent or criminal history would do something so horrific to a woman and children who were passing acquaintances at best.

    Except there’s no actual evidence he was on cocaine or looking at pornography. There’s the alleged drug paraphernalia, but that appears and disappears at the prosecution’s convenience. There’s no mention of drugs in the original arrest reports, then a syringe and white powder are in evidence, but then when the defence wants to test them they’ve disappeared again. Police outright refused to give him a drug test to see if he had drugs in his system, despite his mother’s pleas. They claimed he’d been looking at Playboy, but the magazine he’d had wasn’t pornographic at all (it was a Jet magazine, which traditionally has one picture of a woman in a swimsuit, but is a mixed news, culture and entertainment publication).

    1. It’s one thing to say that America has a more generous appeals process than Germany, it’s another to claim that it’s satisfactory. There are men in prison in America right now who have been declared innocent by judges (Christopher Dunn in Missouri, Barry Jones in Arizona), but can’t be released because of procedural technicalities. The Attorney General of Arizona stood in front of the Supreme Court and said that a defendant successfully proving their innocence shouldn’t be enough to overturn a conviction. Other death penalty states filed supporting briefs agreeing with him and the Supreme Court seems to be seriously considering that they’re right. In Tennessee itself, it took more than a decade from application for Pervis Payne to get permission to test DNA from his crime scene. If he’d been able to do it earlier, maybe it wouldn’t have been too degraded to run through the database. He still can’t get fingerprint testing on all the evidence, because Tennessee law just covers DNA, not fingerprints.

      Yes, there need to be safeguards for appeals, but those safeguards do mean that innocent prisoners will sometimes stay in prison because they can’t thread the needle. It’s not about their innocence, it’s about the procedure. Every prisoner who’s been exonerated after 20, 30, even 40 years has been through decades of appeals before finding that magical combination of facts and luck that finally got them released. That there have been years of appeals in this specific case doesn’t really mean a lot other than that appeals are difficult.

      It’s a pretty big leap from “intellectually disabled defendants are less equipped to deal with a courtroom setting” to “and therefore we shouldn’t put them on trial”. Intellectually disabled defendants often struggle at school. We still try to educate them. Some go to special schools, others stay in mainstream schools but they have specialist teachers, or extra tutoring sessions, or various accommodations like additional time in exams. If an intellectually disabled defendant is being put on trial, they also need appropriate accommodations and additional support. That means lawyers and judges who are familiar enough with intellectual disability to make any necessary adjustments. If the intellectual disability is central to the defence, then that means an expert witness to explain it to the jury (who probably don’t understand what intellectual disability means in a practical, medically defined sense).

      The fact that Pervis Payne’s intellectual disability was mild isn’t important. People just outside of the intellectual disability range still face significant problems. We know that, in this specific case, his intellectual disability, including problems with memory, language and reasoning, affected every other part of his life, including his performance at school, his ability to maintain employment and his personal relationships. It seems illogical to suggest that it didn’t have any bearing on how he dealt with the trial. Now, did the jury consider whether his intellectual disability explained inconsistencies in his story? No, because they weren’t thinking about intellectual disability at all. They were told he had a low IQ, but not what that meant, or how it might interact with his adaptive deficits. They had no way to put his story and behaviour in context. They were judging the case without the full facts. Which wasn’t necessarily a failure by the original defence attorney, because at the time intellectual disability was less understood, and even if it was brought up in court would often be seen more as a sign of future dangerousness than mitigation. That absence in the original trial, however, makes it much harder to raise the issue now (when the court has only just acknowledged that he has an intellectual disability in the first place).

      When the police have a suspect, and that suspect presents them with an alternative theory of the crime, they do have to investigate whether it could be true. It might just be a cursory investigation to see if it’s remotely plausible, but they still need to check. Jumping to assumptions based on first impressions is one of the major ways that investigations go wrong.

      1. Pages that link to the DNA petition and the response after testing proved inconclusive:

        I have read more detail about the white skin remarks, but I cannot remember if it was a court filing or an interview. Off the top of my head, though, there are a few possible reasons why they haven’t/can’t be used to declare the trial unfair. The trial attorney didn’t object and the claim was considered waived. The appellate attorney in the first round of appeal didn’t raise it, so it was defaulted for future appeals. It was considered, but like you the court ruled that it was minor compared to the defendant being found covered in the victim’s blood and wouldn’t have changed anything. What I can’t imagine is what the valid reasons would be for focusing on the victim’s skin colour in the first place.

        You implied lynching in Tennessee was a thing of the distant past. I pointed out that it was within living memory (and, of course, it was ongoing in neighbouring states for even longer). And legalised racism remained open public policy until the 1960s. Unless you think every racist magically let go of all their bigotry on the day the Civil Rights Act was passed, then yes, people who grew up in that environment where blackness was dangerous and whiteness needed to be protected would have been shaped by those ideas. Maybe not consciously, and no, I don’t think you can measure it as a quantifiable influence on Pervis Payne’s trial, but you equally can’t separate that trial from its historical and societal context. It’s a red flag, the sort of thing that means a case needs to be treated and reviewed with extra care, even if it’s not evidence to present in court.

        (From a personal, anecdotal standpoint, which I know doesn’t qualify as solid evidence either, I met a girl in Tennessee in 2012 whose parents practically threatened to disown her when she brought home a black boyfriend. Another friend had older relatives who would still casually use the n-word around her. From what I could see, those attitudes were still boiling just below the surface.)

        That’s the first time I’ve ever seen someone say American jury selection is better than English (though I am English, so I suppose most of the people I spend time around may be biased). There probably could be more time taken to probe for bias on English juries, but a random selection is more likely to provide an even cross section of the community. From what I’ve seen of lawyers conducting voir dire in America, it’s less about unbiased jurors and more about trying to get the jurors who are biased in your favour. And selecting a capital jury (not something we have to do in the UK) is different to selecting a regular jury, so it’s not necessarily a fair comparison anyway.

        If I can’t use examples of racism from decades earlier to illustrate a point about a case in the 1980s, then you can’t use examples of trials last year to defend a trial in the 1980s either (especially in different states). Rules change. The Pervis Payne case was only two years after Batson established the standard for reviewing racial bias in jury selection. And if we are talking about recent cases, then you also have the trial of Ahmaud Arbery’s killers, where the judge said he thought the defence attorneys were picking and striking jurors based on race, but he couldn’t do anything about it, and the Ghislaine Maxwell trial, where the verdict is now under threat because a juror failed to disclose pertinent information. In fact, with regards to your examples, there was a lot of criticism of the Rittenhouse trial, not over the jury but because of the conduct of both the judge and the prosecutor, and I believe there was some controversy with Chauvin over a juror who supported Black Lives Matter.

        And like with the intellectual disability argument, no, this doesn’t mean Tennessee can’t try black defendants. It just means we need to be aware of the potential effects of racism and make active efforts to counter them, including admitting the increased chance of things going wrong.

      2. Prosecutors aren’t the ones who declare innocence, but whether they support or oppose the defence can make a big difference to the effectiveness of the appeal. Some prosecutors found Conviction Integrity Units, others oppose every defence motion as a matter of principle. If the DA hadn’t spent so long opposing DNA testing, maybe the samples wouldn’t have become so degraded. Maybe they wouldn’t have lost the fingernail scrapings either. Considering the Shelby County District Attorney’s Office has a recent and not insignificant history of withholding evidence, including in capital cases, and DA Amy Weirich herself has been criticised and even officially reprimanded for misconduct, I view her claims that items have mysteriously disappeared and no one knows where they’ve gone with scepticism.

        (Also, on the racism front, Shelby County has spent a significant portion of the last decade being investigated, then monitored by federal authorities because of racially discriminatory practices in their juvenile justice system. That’s something that is supported by solid evidence, and says something about overall attitudes in the county even today)

        There are certain things that make a wrongful conviction more likely. A horrific crime with strong public pressure for a quick result. A vulnerable defendant. Police and prosecutors with a history of misconduct. They’re all present in Pervis Payne’s case.

        None of these things are enough to prove innocence. So, what do you do when you find these red flags? You investigate further. For instance, a neighbour heard someone in the bathroom when Charisse Christopher was killed. Pervis Payne said he never went in the bathroom. It would have been easy enough to check in there for his fingerprints. Except the police didn’t bother at the time, so we’ll never know. The defence have asked for other items to be checked for fingerprints, but Tennessee law doesn’t cover that, so the judge denied the request. We can’t prove he was on drugs because police refused to conduct a drug test, so we’re left with the mysteriously disappearing paraphernalia. We can’t test the DNA under Charisse Chistopher’s fingernails, because those samples have disappeared too.

        All you need to do to believe Pervis Payne’s account is to acknowledge three things: that someone can get blood on them at a crime scene without being a murderer, that an intellectually disabled man may not react in the way you expect someone to behave and might not be able to explain why, and that police and prosecutors sometimes get things wrong (whether through indifference, tunnel vision or malice). To prove Pervis Payne’s account, however, allowing for the higher standards needed for an appeal, to prove that you’d need to find the evidence that has disappeared, or that was never collected in the first place, and that’s what makes this case so difficult.

        I don’t know the exact criteria the Innocence Project uses when picking cases, but they don’t do it at random. There have to be questions that need answering. And I think there’s value in asking those questions and trying to fix mistakes, even when it doesn’t lead to outright exoneration. The fact that all investigations have problems doesn’t mean we can’t raise awareness and improve overall standards. As for Steven Avery, the Innocence Project did exonerate him in a different case before the current murder conviction, so that is something of a unique situation.

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