A Tennessee man with an intellectual disability is set to be executed later this year despite new evidence that may prove his innocence.

Pervis Payne was convicted of murdering Charisse Christopher and her 2-year-old daughter, Lacie Jo, in 1988. Payne’s attorneys said that the prosecutor’s entire defense was based on circumstantial evidence and racist stereotypes, reports The Appeal.

On June 27, 1987, when Payne was 20 years old, he was awaiting his girlfriend’s return and checking in at her apartment complex. When he arrived at Hiwassee Apartments around 3 p.m., a man ran past him and down the stairs. Payne continued to walk up to the second floor where he noticed a door across from his girlfriend’s unit was open. When he heard sounds coming from the open door, he announced his presence and proceeded inside to find Christopher bleeding with a knife protruding from her neck.

“I saw the worst thing I ever saw in my life and like my breath just had—had tooken—just took out of me…she was looking at me,” he later testified in court.

He attempted to help by pulling the knife out from her neck and checking on Christopher’s two kids. He ran out of the apartment to find help and saw officers arriving at the scene.

“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,” Payne testified. “I’m coming out of here with blood on me and everything. It going to look like I done this crime.”

Later that day, he was arrested for the killing.

It was later found that Christopher was stabbed 41 times and her daughter was stabbed nine times. Her 3-year-old son, Nicholas, was also stabbed, but he survived.

Payne’s attorneys claim the prosecutor's case was “concocted out of whole cloth” and based on “outdated racial stereotyping.”

A post-conviction challenge focused on victim impact statements and reached the U.S. Supreme Court in 1991, which affirmed his conviction.

On February 24, the Tennessee Supreme Court set a December 3 execution date. Opposition to the state’s motion to set an execution date was filed on December 30, 2019.

Payne's attorneys allege the state withheld evidence and said there were issues with what was presented.

A bloody tampon was presented as evidence, and prosecutors said Payne pulled it from Christopher's body. According to documents, police found it two days after the incident and it “does not appear in any crime scene photos or video taken on the day of the homicide.”

Payne’s post-conviction attorneys left the public defender’s office in 2018, so Kelley Henry, supervising assistant federal public defender in Nashville, and her team took over the case. They began a full reinvestigation.

The December filing shows that Payne’s attorneys found previously undisclosed evidence including a bloody comforter, sheets and a pillow, all of which have yet to be tested, The Appeal reported. 

“I’ve never personally experienced going to a property room and seeing evidence that had not been cataloged or provided before,” Henry said.

According to The Appeal, prosecutors maintained that the crime scene was contained to the kitchen, so the new evidence could lead to another suspect.

The now 52-year-old’s intellectual disability — he has an IQ of 72 — also means the conviction violates the U.S. Supreme Court’s 2002 decision in Atkins v. Virginia, which states executing a person who has intellectual disabilities violates the Eighth Amendment’s ban on cruel and unusual punishment, reports the Death Penalty Information Center. 

Payne’s little sister, Rolanda Payne, was surprised the court scheduled an execution date. She said the December filing clearly showed inconsistencies in the case.

“Now it seems like, to me, the court would say ‘we’ve been seeing this more often now,’” she said. “You see it in the Rodney Reed case, you see it in Nathaniel Woods’ case, you see it in the Walter McMillian case … who wouldn’t want the truth?”

Their father, Carl Payne, still has hope.

“It’s not a good feeling,” he said of his feelings toward the impending execution date. “It’s not a good feeling at all. But we can’t live there.”