THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Wednesday, November 6, 1996 TAG: 9611060432
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY LAURA LaFAY, STAFF WRITER
LENGTH: 97 lines
With their client's scheduled execution Thursday looming, lawyers for condemned Virginia inmate Joseph Payne have been working overtime for a week.
They tracked down jurors who convicted Payne and showed them evidence that hadn't been presented at his trial. Three of those jurors and an alternate became convinced they convicted the wrong man and signed affidavits asking Gov. George F. Allen to spare Payne's life.
They found Reba Inez Dunford, the mother of David Dunford, whom Payne was convicted of murdering in prison in 1985. Reba Dunford, 62 and in a nursing home, told the lawyers she doesn't believe Payne killed her son, and signed an affidavit asking Allen to save him.
They searched without success for Robert Francis ``Dirty Smitty'' Smith, the state's only witness in the case, who testified against Payne in exchange for 15 years off his sentence. Police finally found him, but the lawyers apparently haven't been able to talk to him.
On Monday, they met for two and a half hours with Allen's aides and pleaded for clemency. They said it should give Allen no confidence that several appeals courts have considered the case, because each court deferred to the previous court and the original court deferred to the jurors, who never heard all the evidence.
Also Monday, they were backed by 15 religious leaders, including the bishop of the Richmond Roman Catholic Diocese, the United Methodist bishop and the bishop of the Episcopal Church's Diocese of Southern Virginia headquartered in Norfolk, who urged the governor to grant clemency.
Now, a day before the scheduled execution, they are waiting to hear from two places: The U.S. Supreme Court, which they have petitioned for a stay of execution, and Allen. In that order.
``The reason we've been going to these great lengths is that anyone who looks at the evidence in this case will be convinced that Joe Payne should not be executed,'' said Paul Khoury, who has represented Payne for 10 years.
``The overwhelming evidence is that Joe Payne didn't do this crime and his only accuser did.''
Smith, who other inmates have testified is the real killer in the case, was paroled in September of 1995. He violated his parole when he allegedly put a gun to the head of a Newport News car dealer, and was at large until this week when he was caught in another state. Virginia prisons spokesman David Botkins would not say when or where Smith was caught.
Evidence that was never presented to Payne's jury includes:
A 16-page, sworn notarized recantation in which Smith said investigators threatened and intimidated him into lying at Payne's trial. Khoury took the recantation from Smith at the Augusta Correctional Center in December 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.
Three inmates who testified that Smith got his prison nickname by being ``manipulative,'' ``a con'' and ``screwing over on people.''
Two additional inmate - 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 so stayed out of it. But once Payne, who is white, was convicted, Phillips said, the case 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 seconds later. 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 afterward, 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 reduction and a sodomy charge dropped in exchange for his cooperation.
The religious leaders cited most of these points in their letter to the governor Monday.
``Although we believe the death penalty itself undermines a respect for human life, the execution of an innocent man further undermines both human life and the death penalty,'' they wrote.
Allen, who is considering Payne's clemency petition, said this week that he is ``disturbed'' Payne's lawyers had contacted jurors.
``It's a very poor and wrong approach . . . I don't think it should be encouraged,'' he said.
Allen's aide, Ken Stroupe, said the governor is also disturbed because ``Mr. Payne's attorneys are presenting the information in a rather unusual and public manner.
``It really has the effect of becoming a 10-year closing argument without benefit of a counter argument from the commonwealth's attorney.
``But that will not detract from the fact that the governor will consider very carefully all of the information that is presented to him.''
One person who wants to see Payne executed is Joseph Tashjian, the grandson of a woman Payne did murder during a 1981 robbery in Prince William. Payne was serving a life sentence for that murder when he was convicted of killing Dunford in prison.
Payne ``was given a break with the liberal laws of yesterday and a liberal judge,'' Tashjian told the Richmond Times-Dispatch Monday. This time, ``I don't think he deserves any break from a tough-on-crime governor.''
Allen's lawyer, who spoke with Tashjian Tuesday, will convey Tashjian's sentiments to the governor, Stroupe said. ILLUSTRATION: Photo
Joseph Payne
KEYWORDS: DEATH ROW CAPITAL PUNISHMENT CLEMENCY APPEAL by CNB