Andrew Hammel

The FAZ recently published a feature (g) on Pervis Payne, a former Tennessee death row inmate who now claims innocence. Payne, now in his 50s, was convicted in 1988 of the 1987 stabbing murders of Charisse Christopher, 28, and her daughter Lacie Jo, 2. Payne’s death sentence was later vacated when it was shown he had an intellectual disability (and thus wasn’t eligible for the death penalty).

However, his lawyers are fighting on, claiming his innocence. Payne, who was apprehended minutes after the murder literally covered in the victims’ blood, claims some other guy committed the crime, and he got covered in the victims’ blood when he ran into Christopher’s apartment to help her. This is the aspect of the case the FAZ piece deals with. Under the headline ‘Black-White Justice’ we read the question framing the piece: ‘Is Pervis Payne Innocent’? According to Betteridge’s Law, the answer is “no”. And that’s the the answer I’d pick as well.

The author doesn’t come right out and answer for herself, but she seems to be convinced there are some strong doubts about Payne’s guilt. I’ll get to that question later. First, let me point out the typical German/European journalistic tropes this piece illustrates. By the way, the title of this post comes from Norm MacDonald.

1. The 90-10 Activist /Establishment Speechifying Ratio

The modus operandi of most German journalists in the USA is familiar. Read about some social issue in The Atlantic (which a friend of mine once called ‘the assignment desk for the German media’) or some other mainstream US news source. Pitch the story, get approval, fly to the USA. Who are you going to interview first? Activists. You’ll go straight to the National Coalition for Furries’ Rights, or the Nutria Liberation Front, or the Association for the Advancement of Armenians in the Textile Industry. You’ll drink their coffee and nibble their biscuits as the explain, in great detail, why Situation X is an outrage. The activists’ clients, the activists will assure you, are Davids facing corporate or governmental Goliaths.

But wait — there’s another side to the story, right? There’s a reason this guy is in jail, or that bill was passed, or why company X follows such-and-such a policy. The journalist will thus reach out to the ‘Goliaths’, visit their offices, sit down, and take careful notes, and make sure both sides of this complex issue are presented fairly.

Right?

Wrong. The journalist may visit the representatives of ‘Goliath’, but often doesn’t even bother to do this much. The article he or she writes will quote activists at great length — big, uninterrupted chunks of verbatim argument or detailed summaries. And then the journalist will add some perfunctory quote from a news release or press conference for ‘balance’: “The company/prosecutor/agency released a statement in which it denied all wrongdoing.” This creates the impression — usually but not always misleading — that the Goliath side simply has no real arguments of its own to counter the activists’ claims.

The FAZ article follows this template. Pervis Payne’s supporters are given ample time to speechify, pointing out numerous supposed errors in his trial. The author of the article summarizes other claimed problems, although since she doesn’t mention any specifics or names, it’s unclear how serious these problems might be. In response to this barrage, she quotes a few brief comments from prosecutors merely re-affirming their belief in Payne’s guilt. We’re not given similar summaries of the hundreds of pages of argument and evidence the prosecution advanced to justify Payne’s conviction.

2. Historical Irrelevancies

Like all Europeans, Germans come from a country with a lot of history, and they’re more interested in history than the average American. Much more. This leads German journos to delve far back into the mists of time to try to explain American trends happening right now. Sometimes this is revealing, but most of the time it’s a distraction.

Here’s a whole paragraph from the FAZ piece which illustrates not only Point 1, but also Point 2:

For the lawyer Ngozi Ndulue, the case of Pervis Payne is an example of the influence of racism in American law. ‘The case of Pervis Payne involves an age-old stereotype,’ she says. ‘Namely, the drug-addicted, sex-crazed black man.’ For the Death Penalty Information Center, Ndulue looked at the role of race in capital sentencing. Her verdict: ‘The darker the skin, the more likely the death penalty will be handed down.’ She goes even further: ‘It is very obvious that there’s a kind of historical connection between lynching and the execution of black people’. This, she says, is particularly true of the southern states and those counties with a history of lynchings. Such as Shelby County, where Payne was sentenced.

[Für die Juristin Ngozi Ndulue ist der Fall Pervis Payne ein Beispiel dafür, welchen Einfluss Rassismus in der amerikanischen Rechtsprechung hat. „Es ist ein uraltes Stereotyp, das im Fall Pervis Payne bemüht wurde“, sagt sie.  „Nämlich das des drogensüchtigen, nach Sex verrückten, schwarzen Mannes.” Für das Death Penalty Information Center hat Ndulue sich angeschaut, welche Rolle die Hautfarbe für die Verurteilung bei Kapitalverbrechen spielt. Ihr Fazit: „Je dunkler die Hautfarbe, desto eher wird die Todesstrafe verhängt.“ Sie geht sogar noch weiter: „Es ist sehr offensichtlich, dass es eine Art historischen Zusammenhang gibt zwischen Lynchjustiz und der Hinrichtung schwarzer Menschen.“ Das gelte ganz besonders für die Südstaaten und jene Counties, die eine lange Tradition von Lynchjustiz haben. Wie etwa Shelby County, wo Payne zum Tod verurteilt wurde.]

But even this detailed transcription isn’t enough. We then hear about lynchings in the American South, which were obviously a Bad Thing. This is all of a piece with the Death Penalty Information Center’s brief on the case, which claims: “Payne’s case is another in a series of cases in which police or prosecutors in southern states have played on sexualized racial prejudices to send black men to death row.”

The problem is, though, that Payne wasn’t lynched. He was tried before a mixed-race jury which unanimously found him guilty (I haven’t been able to locate the composition of the jury but if it had been all-white, we’d never hear the end of it). The case against him was based on evidence and testimony, not the prejudices of a pitchfork-wielding mob. As is standard practice in American criminal trials, jurors who held strong prejudices against some group involved in the case were removed prior to trial.

3. Stereotypes are the Root of all Evil

One reason the German reporter seized on the stereotype argument is because this resonates with how bien-pensant Germans think. The German press ethics code, for example, advises newspapers to conceal (g) the ethnicity of criminal suspects when reporting it could “reinforce stereotypes”. Whether this will actually happen, or whether this possible effect is a sufficient reason to hide factual information from readers, is never addressed by the press supervisors; it’s simply assumed in their circle that this is the right approach.

The stereotype argument is also beloved of American activists. Yet the prosecution’s argument, obviously, wasn’t that Payne was a sex-crazed drug addict because he was black. The prosecution’s argument was that Payne used drugs (i.e., injected cocaine), drank several cans of beer, went to the victim’s apartment, and stabbed her to death, likely because she refused his sexual advances. The prosecution proved that he performed these actions to the satisfaction of the jury, which found him guilty beyond a reasonable doubt.

You can always tell when an activist is out of arguments when they begin denouncing stereotypes or ‘dog-whistles’, a rhetorical trick in which you pretend someone said something much more controversial than what they actually said, then attack them for the statement you just attributed to them. If the prosecution had urged the jury to decide based on stereotypes (‘Folks, you know what these people are like’), we would never hear the end of it (and rightly so!). If jury members had confessed to deciding based on ethnic stereotypes (‘They’re always causing trouble, these people‘), we’d also never hear the end of it. So instead of pointing to something someone actually did or said, the activist has to grasp for straws, assuring us that discrimination was simply in the air, like some sort of magical toxic miasma.

The problem with this argument, if you can call it that, is that it’s impossible to draw any practical consequences from it. Are the activists claiming that no black men have ever been drug-addicted sex offenders? Are they claiming that because men were lynched in Shelby County, Tennessee 100 years ago based on racial stereotypes, that people still think that way today? Do they believe that no black man should be held accountable for rape or drug use, even if proven, because this would reinforce a negative stereotype? Are they arguing that it’s unfair for black men to be associated with rape because they’re less likely to commit sex crimes than any other races? If that’s the argument, it’s wrong. Black Americans commit sexual assault at about 8 times the per-capita rate of white Americans — although obviously the rate is still vanishingly small, and the overwhelming majority of black men never violate the law.

After all this back-and-forth about discrimination and stereotypes and history, the question remains: Are there good reasons for concluding that Payne is innocent?

Here’s the description of the basic facts of the crime from the Tennessee Supreme Court:

Defendant was found guilty of first degree murder of Charisse Christopher and her daughter, Lacie, and guilty of assault with intent to commit murder in the first degree of her son, Nicholas. He was given the death penalty for each of the murders and thirty (30) years for the assault with intent to commit murder offense.

Charisse Christopher was 28 years old, divorced, and lived in Hiwassee Apartments, in Millington, Tennessee,  with her two children, three and one-half year old Nicholas and two and one-half year old Lacie. The building in which she lived contained four units, two downstairs and two upstairs. . . . Defendant’s girlfriend, Bobbie Thomas, lived in the other upstairs unit. . . .

Bobbie Thomas had spent the week visiting her mother in Arkansas but was expected to return on Saturday, 27 June 1987, and she and Defendant had planned to spend the weekend together. Prior to 3:00 p.m. on that date, Defendant had visited the Thomas apartment several times and found no one at home. On one visit he left his overnight bag, containing clothing, etc., for his weekend stay, in the hallway, near the entrance to the Thomas apartment. With the bag were three cans of Colt 45 malt liquor.

[At approximately 3:10 p.m., the resident manager, Nancy Wilson, heard a terrible disturbance and called the police.]

Officer C.E. Owen, of the Millington Police Department, was the first officer to arrive at the Hiwassee Apartments. He was alone in a squad car when the disturbance call was assigned to Officers Beck and Brawell. Owen was only two minutes away from the Hiwassee Apartments so he decided to back them up. He parked and walked toward the front entrance. As he did so he saw through a large picture window that a black man was standing on the second floor landing of the stairwell. Owen saw him bend over and pick up an object and come down the stairs and out the front door of the building. He was carrying the overnight bag and a pair of tennis shoes. Owen testified that he was wearing a white shirt and dark colored pants and had “blood all over him. It looked like he was sweating blood.” Owen assumed that a domestic fight had taken place and that the blood was that of the person he was confronting. Owen asked, “[H]ow are you doing?” Defendant responded, “I’m the complainant.” Owen then asked, “What’s going on up there?” At that point Defendant struck Owen with the overnight bag, dropped his tennis shoes and started running west on Biloxi Street. Owen pursued him but Defendant outdistanced him and disappeared into another apartment complex.

Owen called for help on his walkie-talkie and Officer Boyd responded. By that time Owen had decided Defendant was not hurt and the blood was not his own — he was running too fast. Owen told Boyd that “there’s something wrong at that apartment.” They returned to 4516 Biloxi. Nancy Wilson had a master key and let them in the locked Christopher apartment. As soon as the door was opened they saw blood on the walls, floor — everywhere. The three bodies were on the floor of the kitchen. Boyd discovered that the boy was still breathing and called for an ambulance and reported their findings to the chief of police and the detective division. A Medic Ambulance arrived, quickly confirmed that Charisse and Lacie were dead, and departed with Nicholas. He was taken to Le Bonheur Children’s Hospital in Memphis. . . . In addition to multiple lacerations, several stab wounds had gone completely through his body from front to back. . . . He was in intensive care for a period and had [several] operations before he left the hospital, but he survived.

Charisse sustained forty-two (42) knife wounds and forty-two (42) defensive wounds on her arms and hands. . . . [The medical examiner] said no wound penetrated a very large vessel and the cause of death was bleeding from all of the wounds; there were thirteen (13) wounds “that were very serious and may  have by themselves caused death. I can’t be sure, but certainly the combination of all the wounds caused death.” He testified that death probably occurred within, “maybe 30 minutes, that sort of time period,” but that she would have been unconscious within a few minutes after the stabbing had finished.

The medical examiner testified that the cause of death of Lacie Christopher was multiple stab wounds to the chest, abdomen, back and head, a total of nine. One of the wounds cut the aorta and would have been rapidly fatal.

Defendant was located and arrested at a townhouse where a former girlfriend, Sharon Nathaniel, lived with her sisters. Defendant had attempted to hide in the Nathaniel attic. When arrested he was wearing nothing but dark pants, no shirt, no shoes. As he descended the stairs from the attic he said to the officers, “Man, I ain’t killed no woman.” Officer Beck said that at the time of his arrest he had “a wild look about him. His pupils were contracted. He was foaming at the mouth, saliva. He appeared to be very nervous. He was breathing real rapid.” A search of his pockets revealed a “pony pack” with white residue in it. A toxicologist testified that the white residue tested positive for cocaine. They also found on his person a B D syringe wrapper and an orange cap from a hypodermic syringe. There was blood on his pants and on his body and he had three or four scratches across his chest. He was wearing a gold Helbrose wristwatch that had bloodstains on it. The weekend bag that he struck Officer Owen with was found in a dumpster in the area. It contained the bloody white shirt he was wearing when Owen saw him at the Hiwassee Apartments, a blue shirt and other shirts.

It was stipulated that Charisse and Lacie had Type O blood and that Nicholas and Defendant had Type A. A forensic serologist testified that Type O blood was found on Defendant’s white shirt, blue shirt, tennis shoes and on the bag. Type A blood was found on the black pants Defendant was wearing when seen by Owen and when arrested. Defendant’s baseball cap had a size adjustment strap in the back with a U-type opening to accommodate adjustments. That baseball cap was on Lacie’s forearm — her hand and forearm sticking through the opening between the adjustment strap and the cap material. Three Colt 45 beer cans were found on a small table in the living room, two unopened, one opened but not empty, bearing Defendant’s fingerprints, and a fourth empty beer can was on the landing outside the apartment door. Defendant was shown to have purchased Colt 45 beer earlier in the day. Defendant’s fingerprints were also found on the telephone and counter in the kitchen.

Charisse’s body was found on the kitchen floor on her back, her legs fully extended. The right side of her upper body was against the wall, and the outside of her right leg was almost against the back door that opened onto the back porch. . . .

The medical examiner testified that Charisse was menstruating and a specimen from her vagina tested positive for acid phosphatase. He said that result was consistent with the presence of semen, but not conclusive, absent sperm, and no sperm was found. A used tampon was found on the floor near her knee. The murder weapon, a bloody butcher knife, was found at the feet of Lacie, whose body was also on the kitchen floor near her mother. A kitchen drawer nearby was partially open.

Defendant testified. His defense was that he did not harm any of the Christophers;  that he saw a black man descend the inside stairs, race by him and disappear out the front door of the building, as he returned to pick up his bag and beer before proceeding to his friend Sharon Nathaniel’s to await the arrival of Bobby Thomas. He said that as the unidentified intruder bounded down the stairs, attired in a white tropical shirt that was longer than his shorts, he dropped change and miscellaneous papers on the stairs which Defendant picked up and put in his pocket as he continued up the stairs to the second floor landing to retrieve his bag and beer. When he reached the landing he heard a baby crying and a faint call for help and saw the door was ajar. He said curiosity motivated him to enter the Christopher apartment and after saying he was “coming in” and “eased the door on back,” he described what he saw and his first actions as follows:

I saw the worst thing I ever saw in my life and like my breath just had — had tooken — just took out of me. You know, I didn’t know what to do. And I put my hand over my mouth and walked up closer to it. And she was looking at me. She had the knife in her throat with her hand on the knife like she had been trying to get it out and her mouth was just moving but words had faded away. And I didn’t know what to do. I was about ready to get sick, about ready to vomit. And so I ran closer — I saw a phone on the wall and I lift and got the phone on the wall. I said don’t worry. I said don’t worry. I’m going to get help. Don’t worry. Don’t worry. And I got ready to grab it — the phone but I didn’t know no number to call. I didn’t know nothing. I didn’t know nothing about no number or — I just start trying to twist numbers. I didn’t know nothing. And she was watching my movement in the kitchen, like she — I had saw her. It had been almost a year off and on in the back yard because her kids had played with Bobbie’s kids. And I have seen her before. She looked at me like I know you, you know. And I didn’t know what to do. I couldn’t leave her. I couldn’t leave her because she needed — she needed help. I was raised up to help and I had to help her.

He described how he pulled the knife out of her neck, almost vomited, then kneeled down by the baby girl, had the feeling she was already dead; said the little boy was on his knees crying, he told him not to cry he was going to get help. His explanation of the blood on his shirt, pants, tennis shoes, body, etc., was that when he pulled the knife out of her neck, “she reached up and grab me and hold me, like she was wanting me to help her . . .”, that in walking and kneeling on the bloody floor and touching the two babies he got blood all over his clothes. He said he went to the kitchen sink, probably twice, to get water to drink when he thought he was going to vomit, but he denied that he went into the bathroom at any time or used the bathroom lavatory to wash up, as Nancy Wilson testified she heard someone do after the violence subsided.

He was then suddenly motivated to leave and seek help and he described his exit from the apartment as follows:

And I left. My motivation was going and banging on some doors, just to knock on some doors and tell someone need help, somebody call somebody, call the ambulance, call somebody. And when I — as soon as I left out the door I saw a police car, and some other feeling just went all over me and just panicked, just like, oh, look at this. I’m coming out of here with  blood on me and everything. It going to look like I done this crime.

The shoulder strap on the left shoulder of the blue shirt he was wearing while in the victim’s apartment was torn, a fact he did not seem to realize and could not remember when it happened. He said he ran because the officer did not seem to believe him. He claimed that he had the Colt 45 beer with him as he ran; that the open can with beer in it spilled into the sack, as he ran from Owen, the bottom of the sack broke, the beer and tennis shoes were scattered along his route. He said that what witnesses had described as scratches were stretch marks from lifting weights.

Defendant presented five character witnesses who testified that Defendant’s reputation for truth and veracity was good. Ruth Wakefield Bell testified that she had known Defendant all of his life. She was age 40 and lived in the same block on Biloxi as the Hiwassee Apartments, across the street. She said that on the Saturday afternoon of the murders, Defendant knocked on her door, identified himself and she looked out her bedroom window and saw him, but she did not let him in — she was upset with her boyfriend and did not want to see or “entertain” anyone. She denied that she was afraid to let him in — or that there was anything unusual about his appearance. She estimated that it was about twenty minutes after he knocked on her door that she saw police cars and an ambulance across the street. Defendant testified that he knocked on her door just before he decided to go to Sharon Nathaniels and went in the Hiwassee Apartments to pick up his bag and beer.

That looks like a very strong case to me. Payne’s lawyers have spent over 30 years trying to undermine it. They’ve pointed to some discrepancies in the police investigation (which exist in every case) and the statement of an eyewitness who claims to have seen someone else exiting Christopher’s apartment (ordinarily defense lawyers rightly attack eyewitness testimony when it incriminates their clients, but when it exculpates them, that’s another matter). They also point to DNA from an unknown male found on the murder weapon, but since the murder weapon was one of Christopher’s much-used kitchen knives, and there is no way to tell when the DNA was deposited, this doesn’t prove much. In any event, none of these claims has yet to convince a single appeals court. The FAZ article, of course, barely even mentions the initial trial or the appeals court decisions, two of the journalistic lapses I criticized in a German-language article I published about coverage of American court cases.

Is Payne innocent? I don’t know, haven’t read the defense briefs. But what I do know is that the FAZ article doesn’t come close to presenting a balanced, convincing argument either way. German journalists, you can, and should, do better than this.