ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, November 3, 1996 TAG: 9611040027
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
DATELINE: NORFOLK
SOURCE: LAURA LAFAY STAFF WRITER
JOSEPH PATRICK PAYNE is scheduled to die by lethal injection Thursday. Three of his jurors now believe he may be innocent.
Three members of the jury that sent Joseph Patrick Payne to death row in 1986 now say they would never have done so if they had heard all the evidence in the case.
All three have asked Gov. George Allen to grant clemency to Payne, who is scheduled to die by lethal injection Thursday.
"I sincerely hope that Governor Allen will stop the execution of Joseph Payne," said juror Gail Jackson Reynolds in an affidavit gathered by investigators for Payne's lawyer.
"The guilty verdict that the jury delivered was not well-informed, and it should give the governor no confidence that the right man is being executed."
Payne, 40, was sentenced to die for the prison murder of David Dunford, a Powhatan Correctional Center inmate who was doused with paint thinner and set afire early on the morning of March 3, 1985.
No evidence linked Payne to the crime except the testimony of Robert Francis Smith, aka "Dirty Smitty," who got 15 years cut from his 40-year sentence in exchange for his cooperation. Smith told jurors he had seen Payne toss paint thinner and matches into Dunford's cell.
Payne's lawyer called only one defense witness: another inmate who said he saw Smith set Dunford on fire. Other inmate witnesses who had come to give similar testimony waited in a locked van outside the courthouse, but were not called.
A year after Payne's conviction, Smith recanted his testimony in the case. Then, at a hearing for Payne in 1991, he changed his story again, saying he had recanted only so that inmates would stop calling him a snitch.
Smith was paroled to Newport News last September, but has since violated his parole for allegedly putting a gun to the head of a car dealer. He is at large.
Payne, who was serving a life sentence for the murder of a Prince William store clerk at the time of Dunford's death, has always insisted he didn't kill Dunford.
But he has had no luck appealing his case. His lawyers petitioned Allen for clemency last week, and have also filed a last-ditch petition with the U.S. Supreme Court. Also last week, they began contacting jurors in the case, and asking them to examine a package of evidence not presented at Payne's trial.
That package will also be presented to members of the governor's staff Monday, the day Payne's lawyers are scheduled to meet with them and ask for clemency. The package includes:
* Affidavits from three inmates who say Smith got his prison nickname by being "manipulative" and "a con."
* Affidavits from 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 so stayed out of it. But once Payne was convicted, he said, it became "a human thing."
* An affidavit from 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 16 inmates who were brought to court by Payne's trial lawyers, then sent away without testifying.
* Affidavits from two more inmates who said they heard Smith brag about the killing, and a third who said Smith told him: "I'd testify against my grandmother to get the hell out of jail."
* Records indicating that Smith got a sodomy charge dropped and a 15-year sentence cut - not a 10-year cut as the jury had been told - in exchange for his testimony.
One of the jurors contacted, Robert Stinnett, called the inmates' affidavits "extremely disturbing."
"If they are true, then we convicted and sentenced the wrong man to death," he wrote in his statement.
"I certainly wish that the jury had had a chance to consider the testimony of these men along with what we heard from Dirty Smitty, because I think it's likely we would not have convicted Joe Payne."
Another juror, Shelly Brydie Gray, said she never believed Payne was guilty and that other jurors bulldozed her into agreeing to a guilty verdict, reducing her to tears in the process.
"I have thought about this case at least every other day for the last 10 years," wrote Gray.
"I have always thought that this mistake would be something I would one day have to settle with God."
Even the mother of the murdered man believes Payne's conviction might be a mistake. Reba Inez Dunford gave Payne's lawyers an affidavit last week asking for clemency from Allen.
"I have doubts that Joe Payne killed my son," she wrote.
"Joe Payne's execution will do nothing but hurt more people, including me. I can think of no greater tragedy than killing an innocent man."
In preparation for his execution, Payne was moved to the death house at the Greensville Correctional Center on Friday.
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