THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: MONDAY, June 27, 1994 TAG: 9406270089
SECTION: FRONT PAGE: A5 EDITION: FINAL
SOURCE: BY JUNE ARNEY, STAFF WRITER
DATELINE: 940627 LENGTH: Medium
Joseph Patrick Payne Sr., 38, is on death row at Mecklenburg Correctional Center for that crime - largely based on the testimony of Robert Smith a k a ``Dirty Smitty,'' a fellow inmate who also was a suspect in the murder.
{REST} Yet later, when Dirty Smitty recanted, the court wouldn't admit the evidence based on a legal technicality.
Payne insisted from the start he didn't do it. Three other inmates - who came forward after his trial, horrified that the wrong man had been sentenced to die - back up his story. In affidavits they said they saw Smith, not Payne, set the fire at Powhatan Correctional Center. Payne was there serving a life term for a 1981 murder.
``(Prosecutors) relied on the uncorroborated testimony of a witness they knew to be unreliable and closed their eyes to the possibility that the witness might be the murderer,'' said Paul F. Khoury, representing Payne. ``They went out of the way to give this unreliable witness additional inducements to testify . . . inducements that were not disclosed to defense lawyers.''
For his testimony, prosecutors arranged for a 10-year reduction of his sentence. Yet, Smith also received inducements the jury didn't know about, Khoury said. He got an additional five-year reduction, as well as the dismissal of a sodomy charge to which he had confessed.
``They've put an innocent man on death row and given the actual murderer 15 years of time cuts and other inducements,'' Khoury said. ``And that murderer is now eligible for parole, or will be soon.''
During post-trial motions, a judge refused to allow into evidence a 16-page sworn recantation by Smith outlining promises made to him and admitting that he perjured himself at Payne's trial. Smith also said that Payne was in the shower when the murder occurred.
The handwritten recantation was taken a year and a half after the conviction in the presence of Payne's lawyer and a witness. The statement was notarized, and Smith signed every page. Yet a judge would not admit it, saying the statement was hearsay.
In addition, other witnesses testified against Smith, including one who said Smith vowed to lie at Payne's trial. ``I'd testify against my grandmother today . . . to get the hell out of jail,'' Smith allegedly said.
But Powhatan County Commonwealth's Attorney John L. Lewis III, who prosecuted Payne, contends that the jury knew everything promised Smith.
The additional five-year reduction was granted by corrections officials after the trial, Lewis said. His office was not involved in the disposition of the sodomy charge, which originated in Brunswick Correctional Center, he said.
``I would say (Smith is) probably manipulative like a lot of them in there,'' Lewis said. ``I have no (doubt) that he perjured himself on the stand to get whatever concessions he got. I wouldn't have prosecuted him if I hadn't been totally convinced that Joe Payne was the killer.''
Lewis said Payne's case didn't hinge on Smith's testimony because there were about a half-dozen other witnesses who testified for the commonwealth.
But court papers quoted him saying: ``Without question, had (Smith) not been willing to testify, the commonwealth would not have been successful in getting (a) conviction.''
Payne's appeals are pending in a higher court. But legal precedents portend an uphill battle.
``A man being sent to the electric chair deserves to have evidence of his innocence taken seriously,'' Payne's lawyers wrote. ``The post-trial sworn recantation of the only alleged eyewitness against a defendant is certainly relevant to the issue of whether an innocent man was convicted.''
{KEYWORDS} DEATH ROW VIRGINIA
by CNB