The Virginian-Pilot
                             THE VIRGINIAN-PILOT 
              Copyright (c) 1996, Landmark Communications, Inc.

DATE: Friday, September 27, 1996            TAG: 9609270571
SECTION: LOCAL                   PAGE: B7   EDITION: FINAL 
SOURCE: BY LAURA LAFAY, STAFF WRITER 
                                            LENGTH:  114 lines

CONDEMNED MAN PROTESTS MURDER CONVICTION

When a prisoner was doused with paint thinner and burned to death in his cell in 1985, state corrections officials decided it was time to ``send a signal'' to other inmates.

``I cannot think of a better signal . . . than someone being convicted of capital murder,'' Warden William P. Rogers wrote in a letter to his boss.

Noting that ``it is very difficult to get inmates to testify against inmates,'' he suggested cutting the sentences of those willing to testify.

Before the case was over, four inmates had testified in exchange for 10 years off each of their sentences. A fifth, Robert ``Dirty Smitty'' Smith, got a 15-year cut. All have since been released.

One man was convicted of conspiracy to murder Dunford, and another, Joseph Patrick Payne, was sentenced to death. Barring intervention from the U.S. Supreme Court or clemency from the governor, Payne will die by lethal injection on Nov. 7, a Powhatan County judge ruled Thursday.

But Payne, who was serving life for the murder of a Prince William County store clerk when the prison killing took place, insists he is innocent.

The state, Payne maintains in court documents and interviews, used sentence reductions to obtain his conviction from the real killer, Robert ``Dirty Smitty'' Smith. After that, Payne says, his status as an inmate with a previous murder conviction sealed his fate with the trial judge, the jury and subsequent appellate courts.

``That attitude of: `Oh well, this is just some inmate. Let's kill him,' that attitude is what has carried this case this far,'' Payne's lawyer, Washington-based Paul Khoury, said in an interview.

``That's what put Joe on death row, and that's what put Dirty Smitty back on the street. . . . I defy anyone to take a look at this record seriously and feel comfortable with the execution of Joe Payne.''

Powhatan Commonwealth's Attorney John Latane Lewis III did not return phone calls Thursday, but he said in a June 1994 interview, ``I wouldn't have prosecuted him if I hadn't been totally convinced that Joe Payne was the killer.''

On the morning of March 3, 1985, David Wayne Dunford was in his cell at the Powhatan Correctional Center when someone snapped a padlock on his door and threw paint thinner and several lit matches through the bars.

Dunford screamed. Smoke filled the tier. By the time guards managed to cut the lock, he was burned over 70 percent of his body. Nine days later, he was dead.

``I was up in the shower,'' Payne says of that morning. ``Frank Clements (another prisoner) had been peeking out of the (bathroom) door and then he came and got in the shower, too.

``I was standing there washing off and Smith come rushing into the shower. And maybe a minute or so later, I started hearing people yelling.

``I saw commotion through the window and I got dressed to see what was going on. . . . Just as we were getting ready to leave (the bathroom), Smith told myself and Clements that if anyone asked, we should say he was in the shower with us.''

When investigators came around asking questions, Payne says, he didn't talk. Being a snitch, rumor had it, was one of the reasons Dunford had been killed. But other prisoners began disappearing from the tier - a sign that they were talking and had been put in protective custody.

In October of 1986, Payne found himself on trial for capital murder.

Smith was the state's star witness. Smith, serving 40 years for a series of Peninsula armed robberies, testified that he saw Payne toss the paint thinner and matches into Dunford's cell.

Payne's court-appointed lawyers called only one witness: Frank Clements. Watching from the bathroom door, Clements testified, he saw Smith set Dunford on fire.

Sixteen other inmates waited to testify on Payne's behalf, but Payne's lawyers sent them back to prison. Clements' testimony, they felt, would be enough.

While the jury was deliberating, the prosecution made an offer: Payne could plead guilty in exchange for a sentence that would run concurrently with the one he was already serving. Confident of an acquittal, Payne's lawyers refused. Payne was sentenced to death the next day.

New lawyers from the Washington law firm, Wiley, Rein and Fielding were appointed to represent Payne on appeal. They argued, among other things, that Payne's original lawyers were ineffective and that Smith lied on the stand.

They came to Payne's 1991 habeas hearing with evidence never presented to the jury. It included:

A 16-page, sworn notorized recantation in which Smith said investigators threatened and intimidated him into lying at Payne's trial. Khoury, one of Payne's new lawyers, took the recantation from Smith at the Augusta Correctional Center in December of 1987. Called to the stand at Payne's habeas hearing, however, Smith recanted the recantation. He only made it, he said, so other inmates would stop calling him a snitch.

Two additional inmate eyewitnesses - both black - who testified they saw Smith, not Payne, set Dunford on fire. One of them, Eddie Phillips, said he originally regarded the murder as ``a white thing,'' and stayed out of it. But once Payne was convicted, he said, it became ``a human thing.''

Another witness, inmate Jay Austin, who said he saw Smith walk up to Dunford's cell carrying a paint can, and then run toward the shower. Austin was one of the 16 inmates brought to court by Payne's trial lawyers, then sent away without testifying.

Two more inmates who said they heard Smith brag about the killing afterwards, and a third who said Smith told him: ``I'd testify against my grandmother . . . to get the hell out of jail.''

Records and testimony that Smith got a 15-year sentence cut and a sodomy charge dropped in exchange for his cooperation.

Powhatan Circuit Judge Thomas Warren was unmoved.

Smith's recantation, he said, was ``inadmissable hearsay'' and the testimony was ``in hopeless conflict.'' He dismissed the appeal.

The Virginia Supreme Court refused to review the case, and Payne's federal appeal was dismissed. In August, the U.S. Fourth Circuit Court of Appeals upheld that dismissal.

Last September, after serving 14 years of his 40-year sentence, Smith was paroled to Newport News.

``No one by that name lives here,'' said a man who answered the phone Thursday at the address Smith gave the Virginia Parole Board. ``I've never heard of Robert Smith.'' ILLUSTRATION: Photo

Joseph Patrick Payne is scheduled to be put to death Nov. 7 for the

killing of a fellow inmate.

KEYWORDS: MURDER CAPITAL PUNISHMENT DEATH ROW

INMATES PRISONERS by CNB