NO COURT OF LAST RESORT

By James Willwerth

No one disputes the way in which David Wayne Dunford died. Shortly after cells in the C1 block of Virginia's Powhatan Correctional Center clanged open for Sunday breakfast on March 3, 1985, someone padlocked Dunford's cell, splashed flammable liquid through the bars and tossed in a lighted match. Dunford, a burglar, died in agony nine days later without naming his murderer.

But the Commonwealth of Virginia did. It decided on Joseph Patrick Payne, a soft-spoken, 40-year-old eighth-grade dropout who is scheduled to die by lethal injection on Nov. 7. Yet Payne, while hardly a model citizen, may be innocent of this murder: his attorney has a stack of affidavits maintaining that the crime was committed by the man who became the state's star witness against Payne, as well as a signed document in which that witness confesses to framing him. Why, then, is Joe Payne still facing execution? "That's got me baffled," he admits.

It is no mystery, however, to the nation's small fraternity of capital-appeals lawyers. For more than a decade they have fretted as the Supreme Court, swamped with death-row appeals and prodded by an angry public, has drastically limited the authority of federal courts to review states' capital convictions--and practically eliminated it for appeals based on evidence uncovered after the original conviction. In 1993's Herrera v. Collins, Chief Justice William H. Rehnquist argued that such cases have never merited federal relief unless "an independent constitutional violation" has occurred. Justice Sandra Day O'Connor added that the innocence standard must be "extraordinarily high" so federal courts won't be "deluged with frivolous claims." As early as 1986, the late Justice Thurgood Marshall complained that this trend left death-row petitioners in "an increasingly pernicious vise grip."

For that reason, cases like Joe Payne's will probably become more common. Originally incarcerated for killing a store clerk, he claims to have been in the shower when Dunford was killed. Several eyewitnesses have since supported his claim and fingered one Robert Smith as the killer. The reason they didn't speak up at his trial, they later said, was that they figured that the worst that could befall Payne was a second life sentence. "[It seemed like] a white guy's problem," Eddie Phillips, who is black, later said. But when Payne got death, "to me it became a human problem."

Three eyewitnesses have provided Payne's current lawyer, Paul Khoury, with sworn statements that they saw the murder committed by Robert Smith. Indeed, Smith himself, who became the main state's witness against Payne, later signed a 16-page affidavit stating that he framed Payne because prison officials offered to shave 15 years off his sentence. Thus armed, Khoury marched into a 1991 hearing to reopen his client's case--and was rudely rebuffed. First, Smith recanted his recantation, claiming coercion. Then the judge--who had presided over the original trial--refused to admit Smith's sworn affidavit, ruling that his original credibility was "resolved" by the first jury's belief in him. Finally, the judge declared the new eyewitnesses "unworthy of belief" and let the verdict stand.

The Virginia Supreme Court and a federal district court then ruled against Payne, who next turned to the Fourth Circuit of the U.S. Court of Appeals. But Fourth Circuit judges apparently heed the U.S. Supreme Court's tune on posttrial evidence. While acknowledging "copious evidence" in Payne's favor and "a wealth of evidence" that Smith was "an appalling and known prevaricator," they ruled against Payne. Current case law, wrote Judge William W. Wilkins Jr., requires a reviewing federal court to "presume factual findings made by a state court...to be correct."

Joe Payne's original prosecutor, John Latane Lewis III, is comfortable with this result. "There is no question in my mind that Joseph Payne is the man who killed Dunford," he says. But the disposition may give pause to those familiar with a 1993 staff report by a judiciary subcommittee of the House of Representatives, which, in this year's update, finds that since 1973, 65 death-row inmates were eventually cleared by the federal appeals system and released. Earlier this year, federal legislators killed funding for all nonprofit death-penalty resource centers that provide legal experts to help file appeals. Last April's Anti-terrorism and Effective Death Penalty Act enshrined much of the Supreme Court's casework in yet more restrictive law and severely tightened capital-appeals deadlines.

Joe Payne is bewildered and angry. "If they kill me," he says, "that's deliberate murder." His final hopes rest with his eleventh-hour petition to the Supreme Court or clemency from Virginia's law-and-order Governor George Allen. Neither seems a good bet. "I can't make my peace with this," says Payne. He's not alone in that.

--With reporting by Elaine Rivera/New York

With reporting by ELAINE RIVERA/NEW YORK