July 23, 2020

Milbank Files Petition for Post-Conviction DNA Testing in Death Penalty Case


Milbank LLP pro bono team, with co-counsel the Innocence Project and Nashville-based federal public defender Kelley Henry, have today filed a petition for post-conviction DNA testing on behalf of Pervis Payne, an intellectually disabled Black man who is scheduled for execution in Tennessee on December 3, 2020. This petition follows the disclosure to Mr. Payne’s attorneys in December 2019—for the first time—of evidence that was never before given to the defense, has never been tested for DNA, and contradicts the prosecution’s theory of the crime.

Mr. Payne was convicted and sentenced to death in Shelby County for the 1988 murder of a white woman and her two-year-old daughter, as well as the non-fatal stabbing of her four-year-old son. Mr. Payne, whose girlfriend lived on the same apartment floor as the victims, discovered the crime scene and tried to help the victims before fleeing in fear of being wrongfully accused as the police arrived. Mr. Payne was the sole focus of the criminal investigation, despite consistently asserting his innocence and having no motive for the crime nor prior criminal history. 

DNA testing has never been performed in Mr. Payne’s case. Testing was not available during Mr. Payne’s 1988 trial, and for a prior petition for DNA testing was denied due to a narrow reading of Tennessee’s DNA testing statute that has since been rejected by the Tennessee Supreme Court.

Today’s petition requests that the Shelby County Criminal Court order DNA testing on both the newly disclosed evidence and other evidence from the crime scene. The petition also requests the submission of fingerprint evidence for comparison with the Next Generation Identification (NGI) fingerprint database.

The Milbank pro bono team representing Mr. Payne included Chairman Scott Edelman, partner Jed Schwartz and associate Andrew Porter.

Mr. Edelman said: “Time and time again, DNA testing has proven to be a crucial tool in exonerating wrongfully convicted individuals, including in cases similar to Mr. Payne’s. It would be a tremendous miscarriage of justice to deny access to DNA testing that could save this innocent man. We are honored to partner with the Innocence Project in the pursuit of justice for Mr. Payne.”

“We are emphatically calling on the Court to order DNA testing in this tragic case. As discussed in our petition, DNA testing has resulted in myriad exonerations, and often can help identify the actual assailant. Mr. Payne is entitled to the testing that can finally prove the innocence he has maintained for three decades,” he added.

Read more about Milbank’s dedication to pro bono work here.