When An Intellectual Disability Means Life Or Death

In this episode, join freelance journalist and radio producer Tasha Lemley and podcast host Lydia Chain as they unravel the story of Pervis Payne, a man with an intellectual disability sentenced to death, and the decades-long court battle to remove him from The Row.

Undark Magazine · Ep. 58: When an Intellectual Disability Means Life or Death

Below is the full transcript of the podcast, lightly edited for clarity. You can also subscribe to The Undark Podcast at Apple Podcasts, TuneIn, or Spotify.

AMBI: [DRUMBEATS] Andre Johnson: That’s alright, come on! Yesterday was a monumental win. And I’m being as serious as I possibly can, what I’m about to say. You literally helped save a person’s life yesterday. We can talk about protest and activism and we can theorize about it all. But this is where the rubber meets the road. Pervis Payne is no longer on death row. AMBI: [STREET NOISE ROLLS UNDER] Tasha Lemley: Andre Johnson is a professor, pastor, and activist. And for the past year, he’s led a group of protestors at Union & McLean in Memphis, Tennessee. It’s a corner that has been used for anti-death penalty actions in years past. It’s a busy and wide intersection with a Starbucks, a Walgreens, and an upscale Ramen joint. The day before Thanksgiving, about 20 demonstrators spread out for their weekly rally. They’re wearing shirts and they’re holding signs that say “Free Pervis Payne." Johnson’s group believes Pervis Payne is innocent of the crimes that landed him on death row. Regardless, they also believe he has an intellectual disability — and that, alone, makes it unconstitutional to execute him. So, for 34 years, Payne has lived in this limbo on Tennessee’s Death Row. Until now. Less than one month before his historical intellectual disability hearing was set to begin, the district attorney made a surprising announcement — that, after they’d conducted expert assessments, they were no longer going to challenge his disability claim and that his sentences should be reduced to life instead of death. This case spans more than three decades, numerous attorneys, and a hard execution date. You’re about to learn how a man with a disability was so hard to diagnose, nearly unconstitutionally killed, and why it took so long to remove him from The Row when he never should have been there in the first place. Lydia Chain: This is The Undark Podcast. I’m your host, Lydia Chain. Pervis Payne’s case is complicated — there’s a tangle of critiqued forensics, misplaced evidence, and racism in Shelby County, Tennessee. But it also showcases this convoluted relationship between how scientists and medical professionals understand intellectual disabilities, and then how courts and legislatures interpret and use that science as they make life and death decisions. Tasha Lemley has the story. Tasha Lemley: In 1988, Pervis Payne was convicted of the brutal murder of Charisse Christopher and her daughter, and the attempted murder of her young son — these are crimes he says he didn’t commit. Heads up. Their murders were violent and the details are graphic. Payne says he found Christopher with a knife in her neck. He panicked and he tried to help. Kimkeá Harris: That’s what he was raised to do — to be a help. And you and I might not have made that decision because we would have realized that this wasn’t something we should touch, but that’s where the intellectual disability comes in — inability to make sound judgment … this is a man that we believe is wrongfully convicted. Tasha Lemley: That’s attorney Kimkeá Harris. She’s part of a task force trying to change the legal system in Memphis. She believes Payne’s disability was one of the factors that led to his conviction. But, proving that disability — navigating a tangle of legislative curves — has been a lifelong process for Payne. Rolanda Holman: I call him Bubba. That’s what I call him … Tasha Lemley: This is Payne’s youngest sister Rolanda Holman. Rolanda Holman: Growing up, we had. We had fun. We had a loving family … When my parents would go to church on Friday nights, we were so happy that they would leave us here — Bubba home with us. We were like, “Yeah, you know, we’re getting ready to party now!” And we would dance and make dance routines and just have a blast. He was always that caring person. If you ever saw one of the pictures that are out there with him holding my sister’s and my hand, that’s how he was all the time. Tasha Lemley: These days, Rolanda and her brother are still close. They talk regularly, and she’s able to help him out with a few things. Rolanda Holman: So he gets very excited when he gets mail, but when he gets ready to write them back, he’ll call me and say, “This is what I wrote.” And he’ll read it to me. And some words, he just don’t know how to put: “What do I need to say? This is what I’m trying to say.” And it could be something as, “I’m happy.” “Oh, I thought I had to put a particular word in there.” “No, ‘happy that you are able to, you know, you’re thinking of me. I’m happy that you’re supporting me.’ Yeah. Just simple as that.” “Oh, okay.” You know, something really … he’d say “I knew you’d know!” Cause he thinks I’m really smart, right? And he’ll say “I knew, I had to read this, I didn’t want to send it out, you know, like crazy or whatever.” And I’ll say, “you know what, Bubba?” I said, “Just write it how you feel.”

Tasha Lemley: Rolanda says even though he was seven years older, she knew Bubba couldn’t help with her homework. And, no matter how many times their mother explained, he didn’t remember to separate light and dark clothing for laundry. Rolanda Holman: As I became an adult, and I look back and, of course, different terms begin to develop over the years about intellectual disabilities and things like that. And so I realized, “Oh, this is what Bubba was experiencing …” George Woods: In Mr. Payne’s case, we have a rich, rich social history that tells the story of someone who had real problems, who failed a couple of grades, who was never able to pass a Tennessee test to get out of high school. Who was recognized by multiple teachers as being cognitively impaired, who had difficulty reading, who had difficulty spelling, who had difficulty with math. Tasha Lemley: This is neuropsychiatrist George Woods. He studies co-occurring medical and psychiatric disorders. This rich social history he’s talking about, well it’s something to remember. It’s one of the pieces needed to decide the constitutionality of executing Payne. [BEAT] Tasha Lemley: The day Charisse Christopher and one of her children were murdered, Payne went to visit his girlfriend. He testified he followed a noise and he found Christopher and her two young children brutally stabbed in a nearby apartment. Christopher had a knife sticking out of her neck — she and her 2-year-old daughter, Lacie Jo, they died that day. Payne says he bent down to help her. And he pulled the knife out. He tried to call 911 and he dialed 411 instead — that’s the number for “information.” Then he said that his situation dawned on him. He was covered in blood. He thought people might think he had committed the crime. And he ran. George Woods: It was obviously a choice that was made out of ignorance. Right? And it’s an irrational choice. It’s an irrational choice. And again, can I attribute it just to someone that has intellectual disability? Of course not. Would it be consistent with someone who their entire life, under no stress, has difficulty making good choices? Yes. Tasha Lemley: Payne’s choices the day of the crime, that’s one place where his disability may have come into play. Woods says … George Woods: that clinical state of the person makes them vulnerable, makes them “less than” — when we talk about a cognitive state … We have to figure it out in terms of the crime itself, but we know that we’re working with someone whose brain is more vulnerable. And I think that’s important. Tasha Lemley: Payne was 20 years old when he was convicted. He had no criminal record or drug history. According to court testimony, police responded to a call from a neighbor who heard “blood curdling screams” from the upstairs apartment. They arrived. Found Payne outside the scene. He said he was afraid he would be mistaken for the murderer — so he panicked and he ran. He was arrested at a friend’s house, tried, and found guilty of two counts of first-degree murder, one count of attempted murder, and he was sentenced to death. In the last three decades, Payne has seen eight appeals denied. He’s seen science change, and legislatures try to keep up. He’s had an execution date come and go. And, it took all these years for advocates and attorneys to change laws and to confirm his intellectual disability. To fully understand this case, we need to travel back in time a bit. Through the years, people living with sub-average cognitive functioning have been frequently misunderstood — or even feared. Even the words used to describe their experience can be dehumanizing and cause marginalization. Here’s a university training video from the 1950s. AMBI: [1950s University of Minnesota training video.] Three grades of deficiency are recognized. Moderately retarded individuals are referred to as morons. Those who are severely retarded, are classed as imbeciles. And the very severely retarded are termed idiots. Tasha Lemley: By any name, intellectual disability has long been a part of the human experience. In the recent past, it was popularly referred to as… Elisabeth Dykens: mental retardation … the R word as it’s called in the field. Tasha Lemley: That’s Elisabeth Dykens. She is a professor at Vanderbilt University. She studies areas of strength in people with intellectual and developmental disabilities. Dykens thinks of disability classification as a series of nesting umbrellas. So the top umbrella, this includes all disabilities. Elisabeth Dykens: That’s a huge umbrella, and that could include people who become disabled as they age because of age-related macular degeneration or blindness or dementia, or you hear about people that go out on disability because they pulled their back while they were at work. Tasha Lemley: Now, under that umbrella are developmental disabilities, which, Dykens says, as defined by the federal government, are lifelong conditions marked by gaps in several areas of daily functioning. And they begin as the brain is still developing. Under those? Intellectual disabilities. And, this is where we get into some pretty muddy territory when it comes to diagnosis. Dykens says that for some of the 7 million Americans living with an intellectual disability disorder we can point to a cause — like an injury or a genetic condition. But for about half of cases … it’s not that clear. Elisabeth Dykens: Unfortunately, there aren’t really any biomarkers or blood tests above and beyond, say, a diagnosis of cerebral palsy or genetic syndrome. Even the diagnosis of autism is based on behavioral observations and developmental history. So you’re right … it is messy. Tasha Lemley: So, for someone like Payne to be diagnosed, Dykens says it’s up to a skilled assessor to take a look at three things. First: Deficits in cognitive functioning… Elisabeth Dykens: With an IQ score of less than 70 plus or minus testing error. Deficits in adaptive behavior … Tasha Lemley: That one’s number two: It’s daily life stuff like communication and social skills. Kinda getting around in the world. Elisabeth Dykens: How do people get along with others? How do they make use of recreation time? How do they cope? … how do they take care of themselves, their hygiene, where they live, and how do they get about in the community? Tasha Lemley: And number three? All of this has to be identifiable in childhood … Elisabeth Dykens: … age of onset in the developmental years, which is typically defined as before age 18. Tasha Lemley: Meaning … a traumatic brain injury, well it could certainly affect cognitive functioning. If that happened under the age of 18, that could be considered an intellectual disability. But, if the same injury — and same effects — happened at say 30 years old, it wouldn’t qualify as an intellectual disability disorder. So, these three criteria — cognitive functioning, adaptive behavior, and age of onset — they’re the standard for how an intellectual disability disorder is diagnosed. For most people, diagnosis is important because it creates understanding and a path for government services, and it guides a person’s support network in their care. But the diagnosis is also something to consider in the legal system — especially when it comes to the death penalty. [BEAT] Tasha Lemley: Capital crimes involving perpetrators with intellectual disabilities, they’ve happened, and when Payne was convicted, it was permissible under the 8th amendment to execute someone with an intellectual disability. But then in 2002, the U.S. Supreme Court decided in Atkins vs. Virginia it’s unconstitutional to execute someone with that diagnosis. Here’s Justice John Paul Stevens: AMBI: [2002 Atkins Opinion] “We now hold that the Eighth Amendment prohibition against cruel and unusual punishment categorically forbids the execution of the mentally retarded. [fade under]” Tasha Lemley: There’s a few reasons the Supreme Court decided people with intellectual disabilities “face a special risk of wrongful execution.” One: AMBI: [2002 Atkins Opinion] “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.” Tasha Lemley: Carol Westlake is the executive director of the Tennessee Disability Coalition. She agrees that intellectually disabled people like Payne, they’re less culpable of a crime they’re involved in — and more likely to be convicted of a crime they weren’t. First, with the crime itself… Carol Westlake: Somebody befriends them, gets them to do something that they know is probably not in their best interest, but they don’t have a clear understanding of the consequences of that and the risks that they’re taking. Tasha Lemley: And whether or not they’re innocent, they’re less likely to be able to navigate the system to defend themselves. AMBI: [2002 Atkins Opinion] “Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.” Tasha Lemley: Westlake says defendants often struggle to be understood by police and lawyers, sometimes even act against their own interests, and… Carol Westlake: Folks with intellectual disabilities — because they lack judgment and because they are so used to being stigmatized — will oftentimes try to “pass.” So they will pretend to understand their rights when they don’t really understand their rights. They might want to please authority figures, right? Tasha Lemley: Dr. Woods says this is called … George Woods: “The Cloak of Competence.” You will find that many people with intellectual disability learned how to mask it. You go into a restaurant, right? You can’t read. You pick up the menu, you say, “Oh, you know, I think I’ll just have what you have”.

Tasha Lemley: So, the Atkins decision was a great move towards reducing the risk of executing someone who may have been manipulated — or for someone like Pervis Payne who may have not been able to help as much in his own defense and innocence claim. One problem with Atkins, though, is the court left it up to each individual state to decide exactly what intellectual disability meant for their capital cases. And states have found ways to evade Atkins. Dr. Woods: George Woods: Each state is able to define the parameters of the legal decision, but that’s much different than defining the parameters of what intellectual disability is … So it’s really been the different states attempting to gerrymander intellectual disability that has been confusing, not the standard. Tasha Lemley: Georgia, Texas, and Florida — they’re really good examples of the less-good ways some states set their parameters. Georgia currently has a “beyond reasonable doubt” standard for proving intellectual disability in capital cases. It’s the harshest in the country — so far making it nearly impossible for a jury to agree someone is guilty, yet disabled and exempt from the death penalty. And, after Atkins, Texas courts designed their own system of standards to determine someone’s level of disability and if they were eligible for execution. These Briseño factors included the “Lennie standard.” It’s named after Lennie from “Of Mice and Men.” AMBI: [1939 movie clip at 3:21] George: “Might as well spend my time telling you things. You forget them and I’ll tell you again.” Lennie: “I’ve tried and I tried, but it didn’t do no good. I remember about the rabbits, George!” George: “The only thing you can remember is them rabbits.” Tasha Lemley: Meaning someone, if convicted of murder, had to be at least as disabled as the fictional character “Lennie Small” to be exempt from the death penalty. After the U.S. Supreme Court struck down these standards, Texas now applies contemporary clinical standards to their capital cases. However, according to the nonprofit Death Penalty Information Center, after Atkins and before this update, Texas executed more than a dozen people who likely had intellectual disabilities. Also, after Atkins, Florida set a standard of a single or “bright line” IQ score. It was kind of a pass-fail. So if someone was assessed to have an IQ of 70, they were disabled. 71? Not disabled. Florida is also now applying more appropriate clinical standards to their capital cases involving people with intellectual disabilities, though their protections are not applied retroactively. Carol Westlake: And it’s this business about single IQ score that — and I get — that courts love that sort of thing, right? Because … I’m going it’s really messy … and lawyers and judges don’t want messy, you know? It’s like pregnant/not pregnant. Got it. I’m on it, you know? Intellectually disabled — or not? Well … Tasha Lemley: And she says IQ score is not static — it changes for all of us over time. Scientists’ understanding of the brain developmental period changes over time, too. And because of this, expert definitions get tweaked over time. Like the psychiatric tool, the DSM — the “Diagnostic and Statistical Manual of Mental Disorders.” Carol Westlake: And you know every 12 or so years it gets updated because the science changes because we know new kinds of things. Tasha Lemley: And the American Association on Intellectual and Developmental Disabilities (or AAIDD) well they also change their definitions. Carol Westlake:… their definition, it really comports with the DSM. They have very slight variations. Tasha Lemley: All of this can be difficult for courts. They prefer clear definitions. Carol Westlake: There’s this changing field … Not ideal, but it’s not distance or volume — not a light switch. [laughing] Everybody wants a light switch. AMBI: BUZZ/CLICK Tasha Lemley: Whenever understanding changes and definitions are adjusted, states that still have the death penalty each have a moral responsibility to check themselves — and make sure their laws align with current science. [BEAT] AMBI: Rally singing “Free Pervis Payne!” Tasha Lemley: So what does all of this mean for a case like Pervis Payne’s? Carol Westlake: Honestly, as the Pervis Payne issue came up over this last year, and the issue around intellectual disability made us realize that we had missed an opportunity … to fix this definition. And so we thought that was a really important thing to go back and try to do. Tasha Lemley: And this takes time. Tasha Lemley: Tennessee had no ban against executing someone with an intellectual disability when Payne was convicted back in 1988 so … Kelley Henry: It wasn’t really assessed in terms of looking at an exclusion from the death penalty because it didn’t exist. So the testing that was done was not thorough and it was really done more in terms of looking at mitigation … the jury didn’t really get to hear about how his intellectual functioning would have impacted decisions he made. For example, to try to help the victim or to run when he was faced with the police. Tasha Lemley: Kelley Henry is Payne’s attorney. Her team has been on his case just since 2019. She says that Payne couldn’t raise a claim in 1990 when Tennessee did ban the execution of people with intellectual disabilities because it didn’t apply to people who had already been convicted. It also used a single IQ score as the determining factor — and Payne had previously tested too high. At different times and on different tests, his scores have ranged from 68 to 78. Kelley Henry: The biggest issue 30 years ago was this belief that IQ is like an actuarial score that you had to have this number of 70 that would be spit out on a test. And that became very rigid in our law and our case law — became known as a “bright line rule” … even though science tells us that nobody scores the same on these tests. There’s, you know, a standard error of measurement in all science. And in the context of intellectual disability, that standard error of measurement is plus or minus five points… Tasha Lemley: Dr. Woods says IQ testing is rife with other problems. He says this one test doesn’t tell us all of what we need to know about neurological function … there are additional issues of ethnicity and culture … and then there’s something else wild … Kelley Henry: … the older the test gets the more out of date the norms are. It’s called “norm obsolescence” … So if you’re giving somebody a test that’s particularly old, then their score will be artificially inflated simply because the norming data is out of date. Tasha Lemley: Basically, IQ tests have to be re-standardized, or kind of calibrated over time, to make up for changes in our culture … to account for the stuff we’ve picked up along the way — the stuff we just now know. Kelley Henry: … some of his test scores appear high because he had a score of 78. So that appears high. But when you look at the norming data for that score, you realize that he’s actually scoring in the intellectually disabled range. And when he was given newer tests that were, you know, normed more contemporaneously, he scored on the lower end. So he definitely meets that definition of intellectual disability.

Tasha Lemley: So, here we have a man convicted of a capital crime a couple of years before his state non-retroactively bans the execution of people with intellectual disabilities and more than a decade before the Atkins decision. And then when the Atkins verdict did pass, Henry says Payne couldn’t file a claim because Tennessee was using a “bright line” score of 70 — and he had an un-normed 78, so he didn’t qualify. And even when the Tennessee Supreme Court later determined that the standard error of measurement should be considered when looking at someone’s IQ in a capital case, which could have brought Payne’s score into a disability range, his lawyers faced a nightmarish system of bureaucracy. Kelley Henry: He couldn’t get into court because there was no procedure for him to get into court. It really was a procedural technicality. Tasha Lemley: There’s not a piece of paper to file? Kelley Henry: Although folks tried. Now, I will say this: The team before me filed probably six different lawsuits, trying to figure out a way to get him into court. And every single time the court said, “No, there’s a procedural reason why you can’t use this theory to get into court …” Tasha Lemley: She says the Tennessee Supreme Court took notice in 2016 and told the legislature to fix the procedural problem since they had no interest in executing someone who is intellectually disabled. And this took time. Meanwhile, Payne got an execution date in 2019. That’s when Henry and her team joined his case and started making some noise. Thanks in part to Covid, Payne got a temporary reprieve from execution. Meanwhile, new bills got introduced in the Tennessee Legislature. And then in late April 2021 in the Tennessee General Assembly… AMBI: [Tennessee General Assembly passing SB1349/HB1062.] Because the U.S. Supreme court and the Tennessee Supreme Court also agree that Tennessee’s law must rely on updated medical standards as provided by a manual, such as a DSM-5 and AAIDD-11, and not on outdated and inaccurate measures such as a single IQ score, the requirement for a specific IQ score has been removed from this legislation. This legislation also provides a procurement, a procedural path, for the very limited number of individuals with an intellectual disability, who are already under the death sentence and who have not had their intellectual disability claims fully adjudicated by the courts on the merits. Tasha Lemley: This bill created clarity and it strengthened the protection of individuals with intellectual disability from execution in Tennessee. In other words, it fixed the procedural gap Payne’s been in for more than 30 years. There was finally a paper to file. [BEAT] Tasha Lemley: Henry filed the new claim on Payne’s behalf just 24 hours after the new law passed and courts agreed his claim should be fully heard. Tasha Lemley: Payne’s hearing was set to begin Dec. 13, 2021. And there was a flurry of activity in preparation. The state’s expert conducted an in-person evaluation of Payne. They also interviewed former teachers and family members …in part, to make an attempt to accurately place the age of onset of any deficiencies. Again, neuropsychiatrist George Woods: George Woods: Well, the first thing that you want to do is you want to have a history that tells you something about who he was before 18 … It’s that the social history is so relevant and the data: the medical history, the school history, the testing within the school history, the social history. Who knew him? Who knew him in the environment? What did his friends say about him? You know, what did his teacher say about him … Tasha Lemley: The state filed a motion for their expert to have access to decades of prison records. They also wanted the right to interview prison staff — but they ended up withdrawing that request. Experts say prison staff aren’t qualified to testify to an intellectual disability. From Woods’s perspective, for testimony to be relevant in a case like Payne’s, you’d want … George Woods: someone with clinical judgment. Clinical judgment is a specialized kind of understanding of the subtleties, of the nuances, of the special needs of the people that have this disorder. … Understands that seeing someone that is a cousin that grew up with this person, or seeing someone that’s a teacher that taught this person, is much more valuable than seeing someone that is a prison guard that … has no technical training that may interact with them for five minutes or 10 minutes a day. Tasha Lemley: Plus, experts like Woods say adaptive behaviors can actually improve in a structured environment such as death row.

George Woods: Both the AAIDD and Social Security … which is also actually involved with this, both say prison settings don’t help … it’s really not a value to evaluate someone in a confined setting because there they have supports…the assessments have to be done with as little support as possible … prison life is a very supported life. You don’t have to make your meals. You don’t have to do your washing. Your medications are given to you. You don’t have to think about so many things that are structured into your environment and actually make a person look better than they really are. Tasha Lemley: All the while these assessments were happening, and attorneys were debating methods and access, since his temporary reprieve was over, Pervis Payne could have gotten a new execution date from the Tennessee Supreme Court any time. He wasn’t protected simply because he had an upcoming court date. But as we learned … Andre Johnson: [Echo] Pervis Payne is no longer on death row. Tasha Lemley: After their investigation, the state’s expert convinced the Shelby County DA that Payne likely has an intellectual disability disorder. And because of that, they stopped pursing the death penalty in his case. If the hearing had happened, appeals could have lasted for years. AMBI: Weeping and consoling. [duck under, continue through Skahan] Tasha Lemley: At the short hearing to have his death sentence removed, Payne came into the courtroom and immediately cried and he embraced Kelley Henry. He kind of hung on her. And Henry says “I’ve got you…” Just two and a half minutes after Payne entered the room Judge Skahan confirmed that his death sentence was formally vacated. These 16 seconds ended decades of wondering when he’d wake up to the date he’d be killed. Judge Paula Skahan: Alright, well the order has vacated the capital sentences for Mr. Payne. Based on the findings of experts in this matter that he is intellectually disabled. So, the death sentences are hereby vacated or set aside. Tasha Lemley: Pervis Payne is the first person to avoid execution under the new Tennessee law. Henry expects about a dozen more inmates on Tennessee’s death row to use this same new pathway to try to prove their intellectual disabilities. [BEAT] Today, more than half of all states have either formally ended the death penalty or have a moratorium on its use. And 10 more states, well they have not executed anyone in a decade or more. People from marginalized communities are disproportionately more likely to be executed and activists are pushing to make sure people with intellectual disabilities don’t face this irrevocable punishment. Payne’s case shows that even when the science is clear, and it often isn’t, it can take teams of scientists, doctors, lawyers, and legislators decades to update all the manuals, handbooks, policies, laws, and bureaucratic processes. And as they struggle, people die. Recently, Ernest Johnson was executed in Missouri. He’s a man who many believe had a clear intellectual disability. And Wesley Coonce remains on Indiana’s death row because of one IQ point and a disagreement over age of onset. The U.S. Supreme court refused to hear the case and Justice Sotomayor published an 11-page dissent on the refusal. [BEAT] So now, Kelley Henry and her team continue moving forward on Payne’s innocence claim. And supporters for his case are increasing: From The Innocence Project to The Southern Christian Leadership Conference founded by Dr. Martin Luther King, Jr., to a host of online supporters. Tasha Lemley: And Payne? He’s grateful. AMBI: Rally chants of “Free Pervis Payne” Kelley Henry: So Pervis, it’s been a year since people have been gathering on street corners in Memphis in support of you. What has it felt like for you this past year to know these folks are out there bearing witness, hoping to set you free? Pervis Payne: Wow. I feel so, so overwhelming during these, during these times…it just gives me a hope and a purpose that I never, never knew before. And I’m so, so grateful, so grateful. And I love all of them. And I love all of you. And, um, I just thank Jesus for you. And I’d just like to say please keep standing with me.

Lydia Chain: Tasha, thank you so much for bringing us this story and for joining me to talk about it! Tasha Lemley: Oh, thank you so much for letting me do it. This has been a story that has been on my mind for, I guess three years now, so to see this finally come together, and especially at such a pivotal time in the case, is just really thrilling and I’m really humbled and grateful to get to be a little part of it. Lydia Chain: One of the points that we just didn’t have time to really get into in the main story is his ongoing Innocence Project case. Can you tell us a little more about that? Tasha Lemley: Right, so one of the biggest things that happened in his innocence claim over the last year is that DNA was finally tested on items that had never been tested before. And that was another court battle, so again we couldn’t have gotten into that in this story. It was another battle, but finally DNA was tested and it was found that especially when it comes to the knife itself, it matches with his testimony that he found, came upon this horrible scene, went down to help the victim, and pulled the knife out by the blade. And so Pervis’s DNA is on the hilt of the knife and not on the handle. And there is an unidentified male’s DNA on the handle that is not Pervis’s. And it was too degraded to figure out exactly who it was or run it through a database but that evidence alone matches his testimony that he has stuck with for more than 30 years. And also, you know, it turns out that when Pervis’s team asked for everything that could be tested to be tested, at that point they believed all the evidence was present. Come to find out it’s not. So things like the victim’s fingernail clippings, they’re missing. Things have gone unaccounted for and that’s a really hard part of this case. Lydia Chain: What’s the next step in Payne’s case? Tasha Lemley: So the hope moving forward is the day this podcast comes out, so maybe the day you’re listening to this, Jan. 31, Judge Skahan will determine whether Pervis’s sentences will be served consecutively or concurrently. And Tennessee is actually favorable to concurrency. That determination should come this week. And if his sentences are determined to be able to be served concurrently, he could be eligible for parole in as early as six years. And so that’s the hope moving forward, though the largest hope from, from his family and supporters and team is that he will be determined innocent at some point. Lydia Chain: Tasha Lemley is a freelance journalist and radio producer based in Nashville, Tennessee. Our theme music was produced by the Undark Team and music in today’s episode is by Winston Harrison. Special thanks to Stacy Rector, Bejan Siavoshy, Tony Gonzales, Winston Harrison, Rob Durham, Laramie Renae, David Hooper, Kim Cannon, Mark Lemley. I’m your host, Lydia Chain. See you next month. This article was originally published on Undark. Read the original article.

Undark Magazine · Ep. 58: When an Intellectual Disability Means Life or Death

Below is the full transcript of the podcast, lightly edited for clarity. You can also subscribe to The Undark Podcast at Apple Podcasts, TuneIn, or Spotify.

AMBI: [DRUMBEATS]

Andre Johnson: That’s alright, come on! Yesterday was a monumental win. And I’m being as serious as I possibly can, what I’m about to say. You literally helped save a person’s life yesterday. We can talk about protest and activism and we can theorize about it all. But this is where the rubber meets the road. Pervis Payne is no longer on death row.

AMBI: [STREET NOISE ROLLS UNDER]

Tasha Lemley: Andre Johnson is a professor, pastor, and activist. And for the past year, he’s led a group of protestors at Union & McLean in Memphis, Tennessee. It’s a corner that has been used for anti-death penalty actions in years past. It’s a busy and wide intersection with a Starbucks, a Walgreens, and an upscale Ramen joint. The day before Thanksgiving, about 20 demonstrators spread out for their weekly rally. They’re wearing shirts and they’re holding signs that say “Free Pervis Payne."

Johnson’s group believes Pervis Payne is innocent of the crimes that landed him on death row. Regardless, they also believe he has an intellectual disability — and that, alone, makes it unconstitutional to execute him. So, for 34 years, Payne has lived in this limbo on Tennessee’s Death Row. Until now.

Less than one month before his historical intellectual disability hearing was set to begin, the district attorney made a surprising announcement — that, after they’d conducted expert assessments, they were no longer going to challenge his disability claim and that his sentences should be reduced to life instead of death.

This case spans more than three decades, numerous attorneys, and a hard execution date. You’re about to learn how a man with a disability was so hard to diagnose, nearly unconstitutionally killed, and why it took so long to remove him from The Row when he never should have been there in the first place.

Lydia Chain: This is The Undark Podcast. I’m your host, Lydia Chain. Pervis Payne’s case is complicated — there’s a tangle of critiqued forensics, misplaced evidence, and racism in Shelby County, Tennessee. But it also showcases this convoluted relationship between how scientists and medical professionals understand intellectual disabilities, and then how courts and legislatures interpret and use that science as they make life and death decisions. Tasha Lemley has the story.

Tasha Lemley: In 1988, Pervis Payne was convicted of the brutal murder of Charisse Christopher and her daughter, and the attempted murder of her young son — these are crimes he says he didn’t commit. Heads up. Their murders were violent and the details are graphic. Payne says he found Christopher with a knife in her neck. He panicked and he tried to help.

Kimkeá Harris: That’s what he was raised to do — to be a help. And you and I might not have made that decision because we would have realized that this wasn’t something we should touch, but that’s where the intellectual disability comes in — inability to make sound judgment … this is a man that we believe is wrongfully convicted.

Tasha Lemley: That’s attorney Kimkeá Harris. She’s part of a task force trying to change the legal system in Memphis. She believes Payne’s disability was one of the factors that led to his conviction. But, proving that disability — navigating a tangle of legislative curves — has been a lifelong process for Payne.

Rolanda Holman: I call him Bubba. That’s what I call him …

Tasha Lemley: This is Payne’s youngest sister Rolanda Holman.

Rolanda Holman: Growing up, we had. We had fun. We had a loving family …

When my parents would go to church on Friday nights, we were so happy that they would leave us here — Bubba home with us. We were like, “Yeah, you know, we’re getting ready to party now!” And we would dance and make dance routines and just have a blast.

He was always that caring person. If you ever saw one of the pictures that are out there with him holding my sister’s and my hand, that’s how he was all the time.

Tasha Lemley: These days, Rolanda and her brother are still close. They talk regularly, and she’s able to help him out with a few things.

Rolanda Holman: So he gets very excited when he gets mail, but when he gets ready to write them back, he’ll call me and say, “This is what I wrote.” And he’ll read it to me. And some words, he just don’t know how to put: “What do I need to say? This is what I’m trying to say.”

And it could be something as, “I’m happy.”

“Oh, I thought I had to put a particular word in there.”

“No, ‘happy that you are able to, you know, you’re thinking of me. I’m happy that you’re supporting me.’ Yeah. Just simple as that.”

“Oh, okay.” You know, something really … he’d say “I knew you’d know!”

Cause he thinks I’m really smart, right? And he’ll say “I knew, I had to read this, I didn’t want to send it out, you know, like crazy or whatever.” And I’ll say, “you know what, Bubba?” I said, “Just write it how you feel.”

Rolanda Holman: As I became an adult, and I look back and, of course, different terms begin to develop over the years about intellectual disabilities and things like that. And so I realized, “Oh, this is what Bubba was experiencing …”

George Woods: In Mr. Payne’s case, we have a rich, rich social history that tells the story of someone who had real problems, who failed a couple of grades, who was never able to pass a Tennessee test to get out of high school. Who was recognized by multiple teachers as being cognitively impaired, who had difficulty reading, who had difficulty spelling, who had difficulty with math.

Tasha Lemley: This is neuropsychiatrist George Woods. He studies co-occurring medical and psychiatric disorders. This rich social history he’s talking about, well it’s something to remember. It’s one of the pieces needed to decide the constitutionality of executing Payne.

[BEAT]

Tasha Lemley: The day Charisse Christopher and one of her children were murdered, Payne went to visit his girlfriend. He testified he followed a noise and he found Christopher and her two young children brutally stabbed in a nearby apartment. Christopher had a knife sticking out of her neck — she and her 2-year-old daughter, Lacie Jo, they died that day.

Payne says he bent down to help her. And he pulled the knife out. He tried to call 911 and he dialed 411 instead — that’s the number for “information.” Then he said that his situation dawned on him. He was covered in blood. He thought people might think he had committed the crime. And he ran.

George Woods: It was obviously a choice that was made out of ignorance. Right? And it’s an irrational choice. It’s an irrational choice. And again, can I attribute it just to someone that has intellectual disability? Of course not. Would it be consistent with someone who their entire life, under no stress, has difficulty making good choices? Yes.

Tasha Lemley: Payne’s choices the day of the crime, that’s one place where his disability may have come into play. Woods says …

George Woods: that clinical state of the person makes them vulnerable, makes them “less than” — when we talk about a cognitive state …

We have to figure it out in terms of the crime itself, but we know that we’re working with someone whose brain is more vulnerable. And I think that’s important.

Tasha Lemley: Payne was 20 years old when he was convicted. He had no criminal record or drug history. According to court testimony, police responded to a call from a neighbor who heard “blood curdling screams” from the upstairs apartment. They arrived. Found Payne outside the scene. He said he was afraid he would be mistaken for the murderer — so he panicked and he ran. He was arrested at a friend’s house, tried, and found guilty of two counts of first-degree murder, one count of attempted murder, and he was sentenced to death.

In the last three decades, Payne has seen eight appeals denied. He’s seen science change, and legislatures try to keep up. He’s had an execution date come and go. And, it took all these years for advocates and attorneys to change laws and to confirm his intellectual disability.

To fully understand this case, we need to travel back in time a bit. Through the years, people living with sub-average cognitive functioning have been frequently misunderstood — or even feared. Even the words used to describe their experience can be dehumanizing and cause marginalization. Here’s a university training video from the 1950s.

AMBI: [1950s University of Minnesota training video.]

Three grades of deficiency are recognized. Moderately retarded individuals are referred to as morons. Those who are severely retarded, are classed as imbeciles. And the very severely retarded are termed idiots.

Tasha Lemley: By any name, intellectual disability has long been a part of the human experience. In the recent past, it was popularly referred to as…

Elisabeth Dykens: mental retardation … the R word as it’s called in the field.

Tasha Lemley: That’s Elisabeth Dykens. She is a professor at Vanderbilt University. She studies areas of strength in people with intellectual and developmental disabilities.

Dykens thinks of disability classification as a series of nesting umbrellas. So the top umbrella, this includes all disabilities.

Elisabeth Dykens: That’s a huge umbrella, and that could include people who become disabled as they age because of age-related macular degeneration or blindness or dementia, or you hear about people that go out on disability because they pulled their back while they were at work.

Tasha Lemley: Now, under that umbrella are developmental disabilities, which, Dykens says, as defined by the federal government, are lifelong conditions marked by gaps in several areas of daily functioning. And they begin as the brain is still developing.

Under those? Intellectual disabilities. And, this is where we get into some pretty muddy territory when it comes to diagnosis.

Dykens says that for some of the 7 million Americans living with an intellectual disability disorder we can point to a cause — like an injury or a genetic condition. But for about half of cases … it’s not that clear.

Elisabeth Dykens: Unfortunately, there aren’t really any biomarkers or blood tests above and beyond, say, a diagnosis of cerebral palsy or genetic syndrome. Even the diagnosis of autism is based on behavioral observations and developmental history. So you’re right … it is messy.

Tasha Lemley: So, for someone like Payne to be diagnosed, Dykens says it’s up to a skilled assessor to take a look at three things. First: Deficits in cognitive functioning…

Elisabeth Dykens: With an IQ score of less than 70 plus or minus testing error.

Deficits in adaptive behavior …

Tasha Lemley: That one’s number two: It’s daily life stuff like communication and social skills. Kinda getting around in the world.

Elisabeth Dykens: How do people get along with others? How do they make use of recreation time? How do they cope? … how do they take care of themselves, their hygiene, where they live, and how do they get about in the community?

Tasha Lemley: And number three? All of this has to be identifiable in childhood …

Elisabeth Dykens: … age of onset in the developmental years, which is typically defined as before age 18.

Tasha Lemley: Meaning … a traumatic brain injury, well it could certainly affect cognitive functioning. If that happened under the age of 18, that could be considered an intellectual disability. But, if the same injury — and same effects — happened at say 30 years old, it wouldn’t qualify as an intellectual disability disorder.

So, these three criteria — cognitive functioning, adaptive behavior, and age of onset — they’re the standard for how an intellectual disability disorder is diagnosed. For most people, diagnosis is important because it creates understanding and a path for government services, and it guides a person’s support network in their care. But the diagnosis is also something to consider in the legal system — especially when it comes to the death penalty.

Tasha Lemley: Capital crimes involving perpetrators with intellectual disabilities, they’ve happened, and when Payne was convicted, it was permissible under the 8th amendment to execute someone with an intellectual disability. But then in 2002, the U.S. Supreme Court decided in Atkins vs. Virginia it’s unconstitutional to execute someone with that diagnosis.

Here’s Justice John Paul Stevens:

AMBI: [2002 Atkins Opinion] “We now hold that the Eighth Amendment prohibition against cruel and unusual punishment categorically forbids the execution of the mentally retarded. [fade under]”

Tasha Lemley: There’s a few reasons the Supreme Court decided people with intellectual disabilities “face a special risk of wrongful execution.” One:

AMBI: [2002 Atkins Opinion] “Because of their disabilities in areas of reasoning, judgment, and control of their impulses, however, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”

Tasha Lemley: Carol Westlake is the executive director of the Tennessee Disability Coalition. She agrees that intellectually disabled people like Payne, they’re less culpable of a crime they’re involved in — and more likely to be convicted of a crime they weren’t. First, with the crime itself…

Carol Westlake: Somebody befriends them, gets them to do something that they know is probably not in their best interest, but they don’t have a clear understanding of the consequences of that and the risks that they’re taking.

Tasha Lemley: And whether or not they’re innocent, they’re less likely to be able to navigate the system to defend themselves.

AMBI: [2002 Atkins Opinion] “Moreover, their impairments can jeopardize the reliability and fairness of capital proceedings against mentally retarded defendants.”

Tasha Lemley: Westlake says defendants often struggle to be understood by police and lawyers, sometimes even act against their own interests, and…

Carol Westlake: Folks with intellectual disabilities — because they lack judgment and because they are so used to being stigmatized — will oftentimes try to “pass.”

So they will pretend to understand their rights when they don’t really understand their rights. They might want to please authority figures, right?

Tasha Lemley: Dr. Woods says this is called …

George Woods: “The Cloak of Competence.” You will find that many people with intellectual disability learned how to mask it. You go into a restaurant, right? You can’t read. You pick up the menu, you say, “Oh, you know, I think I’ll just have what you have”.

One problem with Atkins, though, is the court left it up to each individual state to decide exactly what intellectual disability meant for their capital cases. And states have found ways to evade Atkins. Dr. Woods:

George Woods: Each state is able to define the parameters of the legal decision, but that’s much different than defining the parameters of what intellectual disability is … So it’s really been the different states attempting to gerrymander intellectual disability that has been confusing, not the standard.

Tasha Lemley: Georgia, Texas, and Florida — they’re really good examples of the less-good ways some states set their parameters.

Georgia currently has a “beyond reasonable doubt” standard for proving intellectual disability in capital cases. It’s the harshest in the country — so far making it nearly impossible for a jury to agree someone is guilty, yet disabled and exempt from the death penalty.

And, after Atkins, Texas courts designed their own system of standards to determine someone’s level of disability and if they were eligible for execution.

These Briseño factors included the “Lennie standard.” It’s named after Lennie from “Of Mice and Men.”

AMBI: [1939 movie clip at 3:21]

George: “Might as well spend my time telling you things. You forget them and I’ll tell you again.”

Lennie: “I’ve tried and I tried, but it didn’t do no good. I remember about the rabbits, George!”

George: “The only thing you can remember is them rabbits.”

Tasha Lemley: Meaning someone, if convicted of murder, had to be at least as disabled as the fictional character “Lennie Small” to be exempt from the death penalty. After the U.S. Supreme Court struck down these standards, Texas now applies contemporary clinical standards to their capital cases. However, according to the nonprofit Death Penalty Information Center, after Atkins and before this update, Texas executed more than a dozen people who likely had intellectual disabilities.

Also, after Atkins, Florida set a standard of a single or “bright line” IQ score. It was kind of a pass-fail. So if someone was assessed to have an IQ of 70, they were disabled. 71? Not disabled.

Florida is also now applying more appropriate clinical standards to their capital cases involving people with intellectual disabilities, though their protections are not applied retroactively.

Carol Westlake: And it’s this business about single IQ score that — and I get — that courts love that sort of thing, right? Because … I’m going it’s really messy … and lawyers and judges don’t want messy, you know? It’s like pregnant/not pregnant. Got it. I’m on it, you know? Intellectually disabled — or not? Well …

Tasha Lemley: And she says IQ score is not static — it changes for all of us over time.

Scientists’ understanding of the brain developmental period changes over time, too.

And because of this, expert definitions get tweaked over time. Like the psychiatric tool, the DSM — the “Diagnostic and Statistical Manual of Mental Disorders.”

Carol Westlake: And you know every 12 or so years it gets updated because the science changes because we know new kinds of things.

Tasha Lemley: And the American Association on Intellectual and Developmental Disabilities (or AAIDD) well they also change their definitions.

Carol Westlake:… their definition, it really comports with the DSM. They have very slight variations.

Tasha Lemley: All of this can be difficult for courts. They prefer clear definitions.

Carol Westlake: There’s this changing field … Not ideal, but it’s not distance or volume — not a light switch.

[laughing] Everybody wants a light switch.

AMBI: BUZZ/CLICK

Tasha Lemley: Whenever understanding changes and definitions are adjusted, states that still have the death penalty each have a moral responsibility to check themselves — and make sure their laws align with current science.

AMBI: Rally singing “Free Pervis Payne!”

Tasha Lemley: So what does all of this mean for a case like Pervis Payne’s?

Carol Westlake: Honestly, as the Pervis Payne issue came up over this last year, and the issue around intellectual disability made us realize that we had missed an opportunity … to fix this definition.

And so we thought that was a really important thing to go back and try to do.

Tasha Lemley: And this takes time.

Tasha Lemley: Tennessee had no ban against executing someone with an intellectual disability when Payne was convicted back in 1988 so …

Kelley Henry: It wasn’t really assessed in terms of looking at an exclusion from the death penalty because it didn’t exist. So the testing that was done was not thorough and it was really done more in terms of looking at mitigation … the jury didn’t really get to hear about how his intellectual functioning would have impacted decisions he made. For example, to try to help the victim or to run when he was faced with the police.

Tasha Lemley: Kelley Henry is Payne’s attorney. Her team has been on his case just since 2019.

She says that Payne couldn’t raise a claim in 1990 when Tennessee did ban the execution of people with intellectual disabilities because it didn’t apply to people who had already been convicted. It also used a single IQ score as the determining factor — and Payne had previously tested too high. At different times and on different tests, his scores have ranged from 68 to 78.

Kelley Henry: The biggest issue 30 years ago was this belief that IQ is like an actuarial score that you had to have this number of 70 that would be spit out on a test. And that became very rigid in our law and our case law — became known as a “bright line rule” … even though science tells us that nobody scores the same on these tests. There’s, you know, a standard error of measurement in all science. And in the context of intellectual disability, that standard error of measurement is plus or minus five points…

Tasha Lemley: Dr. Woods says IQ testing is rife with other problems. He says this one test doesn’t tell us all of what we need to know about neurological function … there are additional issues of ethnicity and culture … and then there’s something else wild …

Kelley Henry: … the older the test gets the more out of date the norms are. It’s called “norm obsolescence” … So if you’re giving somebody a test that’s particularly old, then their score will be artificially inflated simply because the norming data is out of date.

Tasha Lemley: Basically, IQ tests have to be re-standardized, or kind of calibrated over time, to make up for changes in our culture … to account for the stuff we’ve picked up along the way — the stuff we just now know.

Kelley Henry: … some of his test scores appear high because he had a score of 78. So that appears high. But when you look at the norming data for that score, you realize that he’s actually scoring in the intellectually disabled range. And when he was given newer tests that were, you know, normed more contemporaneously, he scored on the lower end. So he definitely meets that definition of intellectual disability.

And then when the Atkins verdict did pass, Henry says Payne couldn’t file a claim because Tennessee was using a “bright line” score of 70 — and he had an un-normed 78, so he didn’t qualify.

And even when the Tennessee Supreme Court later determined that the standard error of measurement should be considered when looking at someone’s IQ in a capital case, which could have brought Payne’s score into a disability range, his lawyers faced a nightmarish system of bureaucracy.

Kelley Henry: He couldn’t get into court because there was no procedure for him to get into court. It really was a procedural technicality.

Tasha Lemley: There’s not a piece of paper to file?

Kelley Henry: Although folks tried. Now, I will say this: The team before me filed probably six different lawsuits, trying to figure out a way to get him into court. And every single time the court said, “No, there’s a procedural reason why you can’t use this theory to get into court …”

Tasha Lemley: She says the Tennessee Supreme Court took notice in 2016 and told the legislature to fix the procedural problem since they had no interest in executing someone who is intellectually disabled. And this took time. Meanwhile, Payne got an execution date in 2019. That’s when Henry and her team joined his case and started making some noise.

Thanks in part to Covid, Payne got a temporary reprieve from execution.

Meanwhile, new bills got introduced in the Tennessee Legislature.

And then in late April 2021 in the Tennessee General Assembly…

AMBI: [Tennessee General Assembly passing SB1349/HB1062.]

Because the U.S. Supreme court and the Tennessee Supreme Court also agree that Tennessee’s law must rely on updated medical standards as provided by a manual, such as a DSM-5 and AAIDD-11, and not on outdated and inaccurate measures such as a single IQ score, the requirement for a specific IQ score has been removed from this legislation.

This legislation also provides a procurement, a procedural path, for the very limited number of individuals with an intellectual disability, who are already under the death sentence and who have not had their intellectual disability claims fully adjudicated by the courts on the merits.

Tasha Lemley: This bill created clarity and it strengthened the protection of individuals with intellectual disability from execution in Tennessee. In other words, it fixed the procedural gap Payne’s been in for more than 30 years. There was finally a paper to file.

Tasha Lemley: Henry filed the new claim on Payne’s behalf just 24 hours after the new law passed and courts agreed his claim should be fully heard.

Tasha Lemley: Payne’s hearing was set to begin Dec. 13, 2021. And there was a flurry of activity in preparation.

The state’s expert conducted an in-person evaluation of Payne. They also interviewed former teachers and family members …in part, to make an attempt to accurately place the age of onset of any deficiencies.

Again, neuropsychiatrist George Woods:

George Woods: Well, the first thing that you want to do is you want to have a history that tells you something about who he was before 18 …

It’s that the social history is so relevant and the data: the medical history, the school history, the testing within the school history, the social history. Who knew him? Who knew him in the environment? What did his friends say about him? You know, what did his teacher say about him …

Tasha Lemley: The state filed a motion for their expert to have access to decades of prison records. They also wanted the right to interview prison staff — but they ended up withdrawing that request.

Experts say prison staff aren’t qualified to testify to an intellectual disability. From Woods’s perspective, for testimony to be relevant in a case like Payne’s, you’d want …

George Woods: someone with clinical judgment. Clinical judgment is a specialized kind of understanding of the subtleties, of the nuances, of the special needs of the people that have this disorder. … Understands that seeing someone that is a cousin that grew up with this person, or seeing someone that’s a teacher that taught this person, is much more valuable than seeing someone that is a prison guard that … has no technical training that may interact with them for five minutes or 10 minutes a day.

Tasha Lemley: Plus, experts like Woods say adaptive behaviors can actually improve in a structured environment such as death row.

You don’t have to think about so many things that are structured into your environment and actually make a person look better than they really are.

Tasha Lemley: All the while these assessments were happening, and attorneys were debating methods and access, since his temporary reprieve was over, Pervis Payne could have gotten a new execution date from the Tennessee Supreme Court any time. He wasn’t protected simply because he had an upcoming court date. But as we learned …

Andre Johnson: [Echo] Pervis Payne is no longer on death row.

Tasha Lemley: After their investigation, the state’s expert convinced the Shelby County DA that Payne likely has an intellectual disability disorder. And because of that, they stopped pursing the death penalty in his case. If the hearing had happened, appeals could have lasted for years.

AMBI: Weeping and consoling. [duck under, continue through Skahan]

Tasha Lemley: At the short hearing to have his death sentence removed, Payne came into the courtroom and immediately cried and he embraced Kelley Henry. He kind of hung on her. And Henry says “I’ve got you…”

Just two and a half minutes after Payne entered the room Judge Skahan confirmed that his death sentence was formally vacated. These 16 seconds ended decades of wondering when he’d wake up to the date he’d be killed.

Judge Paula Skahan: Alright, well the order has vacated the capital sentences for Mr. Payne. Based on the findings of experts in this matter that he is intellectually disabled. So, the death sentences are hereby vacated or set aside.

Tasha Lemley: Pervis Payne is the first person to avoid execution under the new Tennessee law. Henry expects about a dozen more inmates on Tennessee’s death row to use this same new pathway to try to prove their intellectual disabilities.

Today, more than half of all states have either formally ended the death penalty or have a moratorium on its use. And 10 more states, well they have not executed anyone in a decade or more. People from marginalized communities are disproportionately more likely to be executed and activists are pushing to make sure people with intellectual disabilities don’t face this irrevocable punishment. Payne’s case shows that even when the science is clear, and it often isn’t, it can take teams of scientists, doctors, lawyers, and legislators decades to update all the manuals, handbooks, policies, laws, and bureaucratic processes. And as they struggle, people die. Recently, Ernest Johnson was executed in Missouri. He’s a man who many believe had a clear intellectual disability. And Wesley Coonce remains on Indiana’s death row because of one IQ point and a disagreement over age of onset. The U.S. Supreme court refused to hear the case and Justice Sotomayor published an 11-page dissent on the refusal.

So now, Kelley Henry and her team continue moving forward on Payne’s innocence claim. And supporters for his case are increasing: From The Innocence Project to The Southern Christian Leadership Conference founded by Dr. Martin Luther King, Jr., to a host of online supporters.

Tasha Lemley: And Payne? He’s grateful.

AMBI: Rally chants of “Free Pervis Payne”

Kelley Henry: So Pervis, it’s been a year since people have been gathering on street corners in Memphis in support of you. What has it felt like for you this past year to know these folks are out there bearing witness, hoping to set you free?

Pervis Payne: Wow. I feel so, so overwhelming during these, during these times…it just gives me a hope and a purpose that I never, never knew before.

And I’m so, so grateful, so grateful. And I love all of them. And I love all of you. And, um, I just thank Jesus for you. And I’d just like to say please keep standing with me.

Lydia Chain: Tasha, thank you so much for bringing us this story and for joining me to talk about it!

Tasha Lemley: Oh, thank you so much for letting me do it. This has been a story that has been on my mind for, I guess three years now, so to see this finally come together, and especially at such a pivotal time in the case, is just really thrilling and I’m really humbled and grateful to get to be a little part of it.

Lydia Chain: One of the points that we just didn’t have time to really get into in the main story is his ongoing Innocence Project case. Can you tell us a little more about that?

Tasha Lemley: Right, so one of the biggest things that happened in his innocence claim over the last year is that DNA was finally tested on items that had never been tested before. And that was another court battle, so again we couldn’t have gotten into that in this story. It was another battle, but finally DNA was tested and it was found that especially when it comes to the knife itself, it matches with his testimony that he found, came upon this horrible scene, went down to help the victim, and pulled the knife out by the blade. And so Pervis’s DNA is on the hilt of the knife and not on the handle. And there is an unidentified male’s DNA on the handle that is not Pervis’s. And it was too degraded to figure out exactly who it was or run it through a database but that evidence alone matches his testimony that he has stuck with for more than 30 years. And also, you know, it turns out that when Pervis’s team asked for everything that could be tested to be tested, at that point they believed all the evidence was present. Come to find out it’s not. So things like the victim’s fingernail clippings, they’re missing. Things have gone unaccounted for and that’s a really hard part of this case.

Lydia Chain: What’s the next step in Payne’s case?

Tasha Lemley: So the hope moving forward is the day this podcast comes out, so maybe the day you’re listening to this, Jan. 31, Judge Skahan will determine whether Pervis’s sentences will be served consecutively or concurrently. And Tennessee is actually favorable to concurrency. That determination should come this week. And if his sentences are determined to be able to be served concurrently, he could be eligible for parole in as early as six years. And so that’s the hope moving forward, though the largest hope from, from his family and supporters and team is that he will be determined innocent at some point.

Lydia Chain: Tasha Lemley is a freelance journalist and radio producer based in Nashville, Tennessee. Our theme music was produced by the Undark Team and music in today’s episode is by Winston Harrison. Special thanks to Stacy Rector, Bejan Siavoshy, Tony Gonzales, Winston Harrison, Rob Durham, Laramie Renae, David Hooper, Kim Cannon, Mark Lemley. I’m your host, Lydia Chain. See you next month.

This article was originally published on Undark. Read the original article.