Jury convicts teen of Second-Degree Murder

EDGAR CO.—A 17-year-old boy is the latest to claim self-defense in a death case in Illinois, and the latest to have that claim rejected by what’s supposed to be a jury of his peers.

Terry Payton, who won’t turn 18 until mid-May of this year, was only a month removed from his 16th birthday on June 23, 2011, when he fatally stabbed his mother, 53-year-old Kathie Payton, in the kitchen of their housing apartment in Paris, Illinois, after, he claimed, she threatened to kill him and was reaching for a chef’s knife in a cabinet above her.

The prosecution in the case, however, managed to convince the jury that Payton’s actions were nothing but those of an angst-ridden teen, frustrated with his absent, alcoholic mother who signaled his intent to kill his mother repeatedly in text messages in the months leading up to the murder…and that this didn’t give him cause to believe his life was in danger.

But a huge contingent in Paris, and indeed in Edgar County and even across the nation and the world (as the case has come to the attention of Britons, given Terry’s heritage is directly from that country) is that Terry Payton was completely justified in his actions, having been sorely abused by his mother—his sole relative in the area, at least to his limited knowledge—for the entirety of his life, and when she said on that day “I’m gonna f^*king kill you,” he believed in his heart that she fully meant it, and that he had no other option but, in a split second, to take the steps that he did that unfortunately ended her life.

In limines and misdirection

The lead-up to the trial, for which jury selection began on February 19, 2013, was one of legal wrangling and what’s being called typical misdirection by top officials in Edgar County.

Motions in limine (motions made before a trial begins asking the judge to rule on whether certain evidence can be excluded) had been submitted at the last minute, and were ruled upon Friday, February 15.

One motion had to do with keeping the public out of jury selection, and only allowing “certain” members of the media in, which was never clarified upon actual jury selection…and which generally isn’t done in trials in Illinois.

Of key significance was the motion to exclude opinion testimony from Dr. Marilyn Frey, a clinical psychologist in Paris who also had a practice in Chicago. The state had issued this in limine but were refused exclusion by Judge Steven Garst. The importance of the desire of the state for this exclusion would come to be highly evident during Dr. Frey’s testimony.

Jury selection, including voir dire questioning, was typical, but included, throughout the three panels of 12 that were seated, questions regarding whether the potential jurors had anyone (or they themselves) with problems with alcohol in their family, and of course, whether they were familiar with Terry or Kathie Payton, and had an opinion on the case.

Several potential jurors were, and did.

The question about the stitches

One in particular, a Mrs. Dennison (the spelling is only phonetic; in Edgar County, no court official makes people spell their names, as is done in other counties), a wheelchair-bound woman, advised Terry Payton’s defense attorney, Bob McIntire of Danville, during voir dire that she could not be an objective juror “because I was the one who took him to the hospital when he was four.”

Dennison was on the third (and final) jury panel. A round of questions went through the twelve and McIntire came back around to Dennison.

“And, Mrs. Dennison, could you tell me why you had to take Terry to the hospital?” he asked as if in an afterthought.

“He got hit in the head with a whiskey bottle,” she replied. “I had to take him to get stitches.”

Terry Payton sat stock still at the defense table. McIntire’s question and Dennison’s answer, although powerful, was for naught: all 12 jurors had already been selected from the first two panels; this panel was for alternate selection only. Ray Tapscott and Katy Grott were chosen from the third panel after listening to Mrs. Dennison’s information elicited by McIntire, but they were not involved in the deliberation process.

Instead, the panel of 12 ultimately selected were Mary Ann Magers, Sandra Kulic (spelling only phonetic; although her name was pronounced four different ways during the selection process, the spelling could only be guessed at), Russell Morgan, Marian Cash, Jessica Ford, Brittney Brown, Jon Ellis, Charlene Floyd, Jack Milam, Tiffany Snedecker, Renee Volkman and Angela Long were selected to serve.

They were attentive throughout the trial for the most part (some were at times bored to sleep, literally), but that was apparently the most interesting portion of the entire ordeal for them.

He’s all they have

Edgar County state’s attorney Mark Isaf, newly-reelected this past November after no one ran against him, had one of the most interminable speaking manners likely to be beheld in downstate Illinois. Yet Isaf was all Edgar had to offer as a prosecutor, and he was theirs by default. Many in Edgar revealed that they believed him to be a detestable man: Married to another attorney, Isaf is said to disallow her to practice law, and is extremely critical of how she dresses when she goes out, including sending her back to change if he disagrees with her selection for any public outing.

As well, he’s said to be a somewhat bizarre disciplinarian toward his young children. He’s said to be proud of the fact that they must do a certain number of pushups in order to get TV privileges, and they are otherwise berated and belittled on frequent occasions when he sees fit to do so.

It was little wonder that he didn’t seem to see the wrong behind the way Kathie Payton treated her only son.

Dismissal of one count

Isaf was accompanied at the state’s table by one of Illinois’ finest prosecutors, Ed Parkinson.

Parkinson, of the Illinois Appellate Prosecutor’s office in Springfield, generally only shows up when there’s some very serious case such as murder, arson involving death, crimes against children or the like. His job is to provide assistance to county prosecutors in these tough cases.

However, Parkinson’s presence was somewhat surprising in the Payton case, as it came completely unannounced. And, as it turned out, his presence ended up being somewhat unnecessary.

The first action Isaf took on the morning of Feb. 21, prior to opening statements, was a dismissal of the first of two counts of First-Degree Murder against Payton. The move seemed to stun everyone in the courtroom, and left many with the feeling that Isaf believed his case wasn’t strong enough to even proceed against Payton on the second count of First-Degree Murder, but he did so anyway.

Isaf’s opening statement, delivered at times in mumbles and for the most part in soporific tones (thus the snoring jurors on occasion) set the stage for an elaborate tale spun by the state that seemed to center around a handful of out-of-context text messages Terry Payton had sent his friends in the three or so months leading up to Kathie Payton’s death. It completely disregarded anything in Payton’s life that had happened prior to those three or so months.

In this way, all the focus lay on non-contextual messages, and none of it lay on even the remote possibility that Terry Payton simply could have lashed out in a split-second decision with an action that ended his mother’s life.

Isaf’s opening point-blank stated that Payton was not reasonable in using deadly force against his mother, and instead lasted out in anger, rage and frustration against her.

Isaf said that the then-16-year-old Terry Payton argued that day about money Kathie Payton thought he stole from her, placed a phone call to the police about the missing money, argued about the use of alcohol, and he poured it down the drain, which escalated the situation.

Isaf’s boiled-down version of events

“Then Terry Payton’s ‘dark half surges out,’” Isaf said, later to be learned that he was quoting a text message sent in the hours following Kathie Payton’s death, “he stabs her seven times after ‘mercilessly beating the shit out of her.’ There were two stab wounds in the right carotid/jugular veins,” Isaf related (incorrectly, as the jury was to learn; but that would not be the only serious mistake he made in presenting of the evidence, which mistakes the jury completely overlooked, “one stab in the left jugular, an incised wound sweeping across the front of her neck, and three stabs to the upper chest. She lost a lot of blood, her heart stopped and she died. There was no first aid administered, no ambulance was called and no attempt to help her. At the time he was six-foot-three, 130 pounds; she’s five-foot-six, 150 pounds, with a pacemaker, a bad back, and walked with a cane at times. She abused alcohol, and abused pain medications,” Isaf said, venturing into some realm of truthfulness.

“You will hear a recorded interview in which the defendant said that after killing his mother, he dragged her to her bedroom, tried to clean up the blood, walked to McDonalds, had a sandwich, talked to friends, and was convinced to turn himself in,” Isaf droned. He outlined how police responded at that point, and talked about the autopsy of the body and subsequent interviews of Payton.

“Listen to what he doesn’t say,” Isaf directed the jury. “Understand the sequence of events; remember what he texted to his friends.”

‘The rest of the story’

When McIntire took the floor for his opening, he focused on “the rest of the story.”

McIntire described what happened that day in June 2011 somewhat differently than Isaf did, and gave considerably more lead-up than the prosecutor had. Stating that Terry Payton had had a difficult relationship with his chronically abusive mother, he told of how the boy loved her, but wanted her to stop drinking. He’d credited himself for stopping her cigarette habit when he was at a very young age, and believed that at 16, he could take an action that would cause her to abruptly stop drinking like she’d abruptly stopped smoking ten years before, hence the reason he poured out her alcohol.

But, McIntire said in his “Columbo” demeanor (which is to say, somewhat halting speech, with long dramatic pauses as he appears to collect his thoughts), this was where the story diverged from Isaf’s drastically: Kathie Payton, upon seeing her alcohol poured down the sink, attacked her son, scratching, hitting and trying to bite him.

“He was able to fend her off,” McIntire said, “and she went to the floor. When she got back up, he was by the microwave, backed into a corner. She reached up, above and behind him, and he became aware she was reaching up to a cabinet that held a chef’s knife, wide-handled and of significant length. She was telling him she’d kill him. Evidence will show she’d made similar statements before. But evidence will show this was different from things parents and children say to each other when somebody gets mad that somebody didn’t take out the trash. He knew she was reaching for the knife and she meant it. There was a knife by the sink, a steak knife, and he grabbed it while in fear of his own life, and he did stab her. Though it was several times, it took place in a matter of seconds.

“She fell to the floor and didn’t get up.”

McIntire explained that justifiable homicide comes in when a person believes they must defend themselves against imminent deadly force.

“Deadly force can only be used when confronted with deadly force,” McIntire said. “And we will show an element of justification.”

Local police; CSI; and Crowder, girl investigator

The first two witnesses called by the state were Paris police officers Mike Henness and Phillip Kollenburg. Both recounted how Payton came to the police station and how they turned the scene of the housing apartment at 50 Highland Court over to Illinois State Police Crime Scene Investigators.

Their testimony offered only minimal significance to the evidence, but did show one thing: the failure to secure the back door of the apartment, which, apparently, had been unsecured from about 1:30 (when the crime was estimated to have occurred) until about 6:40, when officers left Payton in custody at the police station and arrived at the apartment.

ISP’s CSI for the scene, DeWayne Morris, explained his expertise in the area of blood evidence, but was never certified as an expert witness by the state…a situation that occurred time and again, and was an apparent oversight in Isaf’s conducting of a trial.

Morris’ highlights in testimony were that he only found “bloodlike stains” on the floor of the kitchen and a trail to the bedroom through the apartment where Payton said he’d dragged his mother’ body. Of interest to Isaf was the fact that there were no “blood spatters”—cast-off blood, which he would expect to see from a stabbing, or pushing in/pulling out of a knife through skin—to be found anywhere in the kitchen.

Morris would not commit to a reason why there were none, although it was growing evident what Isaf was after—that Payton’s version of events was not truthful, and that he hadn’t stabbed his mother in an upright position, but had instead stabbed her while she was down on the floor. Morris could not corroborate that with any certainty, a situation that seemed to frustrate Isaf.

Giving perhaps the most bizarre testimony of that day came from ISP investigator Lisa Crowder. Crowder seemed underqualified to be handling such a high-profile case, having been with ISP for only seven years and handling only five other homicides in her career. It appeared that Crowder only handled Payton’s case because she was the investigator on duty when Paris police called the homicide in.

Crowder testified as to Isaf’s “crucial” text messages Terry Payton sent his friends in the months before the killing and hours after. Her testimony was marked with inappropriate giggling and moments of apparent cluelessness as to what she should say next.

The DVD recording of her very late-night interview with Payton at the police station was played for the jury. During this interview, Payton attempted to tell what had happened in a chronological, sequential order. He was, however, interrupted at nearly every juncture…possibly because Crowder was having difficulty keeping up with the intelligent, yet shaken, young man, but possibly because she was either really tired (it was nearing midnight on the night of June 23), or simply was inept.

Regardless, she got a promotion out of her work on the case, she testified under cross exam by McIntire.

The experts speak: Dr. Roland Kohr

Day two of the trial saw the emergence of Parkinson taking the lead in the questioning of the state’s first certified “expert” witness, Dr. Roland Kohr, the lab director at Terre Haute Regional Hospital since 1993 and associate pathologist since 1984.

Kohr, his presence marked by the attendance of some sour-looking female students or associates of some sort, who were initially seated on the right side of the courtroom but quickly moved en masse to the left side when they realized they were sitting in defense territory, bore with them notepads and made busy-looking scrawls in them during Kohr’s testimony.

Kohr, giving his background, seemed to be more certified in car crash pathology, as he was highly familiar with blunt force trauma associated with those. But he also testified as to his expertise in determining blood alcohol content in a deceased person, advising that science has discovered that blood taken from the femoral artery is more accurate in testing than that taken from the aorta of the heart, as used to be done.

Kohr conducted the autopsy on Kathie Payton, and discussed the results with Parkinson as the attorney presented a series of gruesome photos taken of Kathie Payton’s stab wounds and post-mortem bruising/lividity.

One thing Kohr noted under direct exam was his lack of awareness of whether scrapings of Kathie Payton’s fingernails, or short of that, clippings, were taken.

However, Kohr pointed out three stab wounds on her neck, two on the right, one on the left, each with a depth of an inch and a half, and “one incise wound, a shallow superficial wound caused by dragging a sharp object across the skin.”

The chest stab wounds were “concentrated toward the middle, with two having horizontal orientation and one having vertical.”

The head wounds

Parkinson seemed focused for a bit on the lack of defense wounds on Kathie Payton’s body, but moved on to a head wound: a skull fracture an inch and a half to the right of her forehead.

Kohr testified that epidural and subdural hemorrhage had occurred in the vicinity of the fracture as more gruesome photos, these of the inside of Kathie Payton’s skull as the facial portion has been removed from the rest, were shown.

Kohr postulated on how the skull fracture occurred, but was very clear when he stated that there was “no way to know about the force used to cause that skull fracture.”

A great deal of time was spent discussing the liter of blood found in Kathie Payton’s chest cavity as a result of a lung artery being punctured on one of the stabs.

Kohr opined that “if a body is lying down, there’s only so much blood that can be there. If someone is on their back, air would be expressed out of a wound with the blood. There was a negative finding of an air embolism. To have air bubbles means air entered the venous system. If it’s there, there would be a very unusual sucking wound. It wasn’t there.”

Parkinson attempted to ask Kohr about the difference in being such a sucking wound being present in a person stabbed when vertical versus a person stabbed when lying down, but was successfully stopped by the defense’s medical attorney, Steven L. Blakely of Danville. The jury looked thoroughly confused as a sidebar took a great deal of time, and the entire thing was removed to chambers as the attorneys haggled over the presentation of certain autopsy photos.

Upon return to the courtroom, Parkinson again attempted to establish that Kathie Payton was horizontal when stabbed. A defense objection was overruled but Parkinson tried a different question, asking if Kohr believed Payton was conscious when she was stabbed.

Kohr opined that she was not, based on the lack of defense wounds and the skull trauma.

First revelation of just how drunk she was

Blakely, on cross, established right off the bat something the prosecution was studiously avoiding: Kathie Payton’s blood alcohol content, which was found to be 0.228 percent, nearly three times the legal limit for intoxication.

Blakely further established that she was on Hydrocodone, and had in her system at the time of death anywhere from three to thirteen times the therapeutic dosage of that drug; and had also ingested a small amount of Alprazolam and acetominophen.

Blakely, in questioning Kohr, told the jury that such dosages, when combined with alcohol, can cause confusion, agitation, hostility irritability and hallucinations.

He also reestablished that Kohr “didn’t recall” whether fingernail scrapings or clippings were done, “but we did a routine rape kit test, so they must have been, as that’s always done.”

Blakely also got Kohr to admit that it was possible Kathie Payton could have suffered a skull fracture and “been up walking around”; that the seven stab wounds could have been inflicted in a matter of seconds; that a pacemaker could have forced the heart to beat a little longer after death, resulting in the blood in the chest cavity pooling after a stab to the lung artery in an upright position; and that a lack of defense wounds could have no significance whatsoever.

In other words, everything the state had just tried to convince the jury was 100 percent firm and factual was anything but.

The heavy hitter

The state then brought in a second ISP investigator, former Fairfield police officer Matt McCormick.

McCormick had interviewed Payton the day after the incident while he was in Danville juvenile detention, and stated that a next-day interview was conducted because often, after a person has had time to calm down and sleep a bit, they can remember things they may have been too traumatized to recall in an initial interview.

However, as his testimony progressed, it became clear that there was another purpose for McCormick’s second interview with Payton: he was there to establish how Kathie Payton had gotten the skull fracture Kohr had found during the autopsy.

And once again, the state police displayed what has proven to be their downfall in recent years since the 30-somethings have taken over the investigations field: they try to make the story match the evidence, as opposed to investigating everything around the story in an effort to rule it out, then see what matches up with what.

In an interview that the jury listened to but did not see (as no video recording was made, only audio), it was apparent that McCormick was coercing Payton into telling him a story, any story, that Payton could come up with as to how the skull fracture was inflicted.

Instead of letting the boy tell the entire story start to finish, McCormick, like Crowder before him, continually interrupted Payton in the telling, frustrating the boy and making his “version” seem less believable to the jury, as McCormick continued to try to pigeonhole an answer to fit the evidence instead of the other way around.

And Payton, being raised to be in mortal fear of an authority figure and in making that figure angry, relented and basically told McCormick what he wanted to hear: that he “could have been angry” at his mother and slammed her head against the floor (as opposed to her striking her head on the floor upon her first fall, from which she arose, as he later testified occurred), “could have been” turning into that he “was angry” under insistent coercing by McCormick in the interview.

Isaf’s damning evidence: the texts

The prosecution brought back Crowder to present the evidence Isaf was hinging his entire case on: text messages sent by Terry Payton to his friend Jake Shumaker.

Payton used an iPod touch to text when he was able to get a wireless hit, which put him in a league of texting at a lower frequency than a kid his age who has available a regular cell phone. Nevertheless, Crowder testified, they had been able to print out more than 90 pages of text messages to and from Terry Payton on the device.

Of those 90 pages, Isaf’s entire presentation focused on roughly nine, which held, he claimed, text messages that showed Terry Payton’s murderous thoughts, all the way back to March 11, 2011 and up to June 20, 2011…as well as the texts he sent in the hours after the death of his mother.

The key texts Isaf focused on were:

From Terry: Got any mind control tactics I could use?

From Terry: If she doesn’t shut up I’m going to legit snap I’m sick of the alcoholic c^nt.

From Jake: Who is this? From Terry: I need you. Now. I’m going to kill her.

From Terry: People pushing me to the point I’m gonna take a knife to their throat (this text was embedded in an ignored—by the prosecution, anyway—conversation about a boy who was bothering a girl Jake liked).

(Later in that same conversation) From Jake: I’ll get the shovel. From Terry: I’ll get the chloroform. From Jake: Well he messes with me I’m gonna grab a shovel we’ll have a body to bury. From Terry: We might have a mother to bury if she doesn’t stop whining about a tape case. From Jake: I’ll get the shovel.

The messages, Crowder testified, were in no sequence.

It was clear that ISP once again had used evidence to fit their theory, cherry-picking what suited.

It was unclear, if Isaf was pinning all his hopes on a murder conviction based on these texts, why Jake Shumaker wasn’t charged in an Accountability count.

The state rested its case with the presentation of the texts at 3:15 p.m. Thursday, February 21.

There were audible gasps in the courtroom when Isaf first mumbled, then was asked by Garst to speak up and repeat it, that the state rested.

Out of sequence, but the tone was set

The defense put on one witness that afternoon, out of sequence because she would not be available the following week (and McIntire hadn’t expected the state to have presented their case so rapidly, obviously).

Cindy Patrick, administrative assistant at Paris High School, took the stand to testify as to foul phone calls Kathie Payton repeatedly made to the school, asking for her son and calling him “the f^*king bastard,” among other vulgarities that she spewed over the phone at staff about getting her son out of school.

The following Monday, February 25, saw a parade of defense witnesses who merely supported Payton’s story about the events of June 23, 2011, and the steps Terry Payton took after the incident in which he killed his mother.

Collin Hollowell (again, names spelled phonetically), 17, testified about that day wherein Terry came to Shumaker’s place and almost jokingly advised that he’d killed his mother.

Sandra Chapman, a disabled former neighbor of the Paytons, described how Kathie came to her apartment, drunk, after Kathie had locked Terry out and he’d gone elsewhere…and how she realized that if the police learned that, she’d get in trouble, so she changed her story to “he’d run away.”

Witnesses attest to neglect, abuse; phone call played

Shanna Lawrence, another neighbor, described how she took Terry in on the many times he’d been locked out of his own house from the age of 11 by a drunk and enraged Kathie; Tracy Bracken described the same.

Sandy Holloway, a hairdresser, described a heartbreaking incident that occurred not long before the homicide, in which Kathie was forcing Terry to get his head shaved. Between the implorings of the hairdressers and Terry, a compromise was struck and he got a short haircut.

Jessica Barnes described an incident in which she’d seen Kathie wallop Terry after a football game incident, and how Kathie, upon the many DCFS reports being ‘unfounded,’ would stand outside her apartment and yell belligerently about how “no one would take my son away from me!” apparently since she’d already lost a daughter due to neglect.

The defense also played the phone call made to Paris police on the June 23, 2011 date, in which Kathie Payton forced her son to “confess” to stealing money from her.

On the call, Kathie can be heard in the background telling Terry what to say, and Terry complying meekly.

The police, however, knew what was up and asked Terry if Kathie were “coaching” him. When he said she was not, they asked for her to be put on the phone, and in her drunken slur, Kathie told them he was “finally admitting to stealing money out of my safe, $750 and I want him arrested.”

When she was told “I did hear you in the background telling him what to say, Kathie,” by police, she grew enraged and hung up on them.

The doctor sets it straight

Then that afternoon, the defense presented Dr. George Nichols, former state pathologist (under six governors) for the state of Kentucky.

After giving his impressive credentials Dr. Nichols advised that indeed, even with a small skull fracture, a person—especially on three to 13 times the therapeutic dose of painkillers and three times the legal limit of alcohol intoxication—could get up from sustaining such an injury and attack someone with impunity.

He also testified that as regards Kathie Payton’s skull fracture, it would be impossible to tell whether it was from “the fall of an intoxicated person on a concrete floor” (which the kitchen was), or if someone had intentionally impacted it by beating her head on the floor. “The injuries don’t allow us to determine the mechanics of how it happened,” Nichols said, testifying that the same could be said for lack of defense wounds.

“If they don’t appear, they mean nothing,” he said.

Nichols indicated that the head injury was likely not serious enough to cause lack of consciousness, and that Kathie Payton could have indeed gotten back up after sustaining it and attacked her son, just as he’d said in his interviews that she did.

Nichols also had a similar opinion about whether Kathie Payton was upright or horizontal when she was stabbed: there was no way to know for sure, although “a likely occurrence is for her to have been standing for a longer amount of time after being stabbed than for a short amount of time.”

Nichols explained the lack of cast-off blood from the stabs, and the fact that Kathie’s shirt was soaked with blood but not her pajama pants, very simply: she was stabbed with a serrated knife. The knife made one cut in the shirt, but three stabs to the chest…meaning that when it was withdrawn from the body, it was not withdrawn from the shirt, but instead caught. All cast-off blood would have been caught inside the shirt as well.

Further, “her veins were cut in her neck, not her arteries,” Nichols said. “Arteries seep when cut, not spurt. So it’s likely they simply seeped when she hit the floor.”

Revealing testimony

Perhaps the most revealing testimony was given by Dr. Frey, a psychologist of 47 years and one of the most qualified in the state to give psych evals.

She spoke of her interviews with Terry as they were mandated by the state, which is rote when a juvenile is charged as an adult in a crime. Dr. Frey’s intensive analysis, she said, showed that Terry suffered Battered Child Syndrome (BCS), wherein he sought to please adults in his life even though it might mean his own pain, discomfort, deprivation, etc. She opined that he was not deceptive in his testing and could not be, as he’d tested out with a high factor of truthfulness…an aspect of his evaluation that likely prompted the biggest response from the state of wanting to stifle Frey’s testimony.

She explained his actions following the killing as being “dissociative,” meaning that he couldn’t quite assimilate the reality of what had happened, and his wandering to McDonald’s, Walmart and texting his friends were an attempt at grabbing at normalcy in a surreal situation for a 16-year-old.

That he cleaned up the kitchen after the stabbing, dragged his mother to her room and sat next to her apologizing—as he’d revealed in his interviews to police—showed more evidence of BCS, and showed he clearly had a moral code to which he adhered, even after such an awful event.

Parkinson tried to take Frey’s assessment apart. However, he came off as brutalizing her, even while the woman, clearly in her 70s, held her ground against it.

School personnel testify

School guidance counselor Stacie Garzelini-Skelton testified next, to the bitter, drunken phone call Kathie Payton made to her in late March 2011 about Terry “touching mommy’s medicine” and if he did, she would “cut his legs off with an electric knife, because he’s a sound sleeper, and I’ll cut him down to size, he thinks he’s so big.”

Administrative assistant Loretta Boyer testified to similar phone calls. But JoEllen Henson, a school social worker, gave opposite testimony than what her investigative interview stated, confusing McIntire and making for a bad mark on the defense’s case when she stated that Terry had admitted to stealing money (he said he had not), and having thoughts of harming his mother (he’d said he’d had fears of having to defend himself with physical force from her attacks).

Likewise, Shumaker’s testimony did not match his prior interview, and he made Terry seem more forceful toward his mother than a previous interview had indicated, despite an incident in which Kathie had aimed to hit Terry with a Jim Beam bottle and struck Shumaker instead, this a few weeks before her death.

Takes stand in his own defense

On the morning of February 27, Terry Payton took the stand in his own defense.

He explained the frequency and type of abused he experienced at the hand of his mother, dating back to as long as he could remember. While part of the abuse was indeed physical, much of it was mental, with Kathie taunting him with singsong phrases such as “I’m so perfect” about Terry and his poise in the face of said taunts.

He stated that he loved his mother and sometimes they got along, but most of the time, she just grew more distant and her temper worse as her alcoholism and pill addiction increased.

Shortly after questioning began, McIntire took Terry through being kicked out of the house, the first time at age 11. Recounting what she told him (“This is my house, getout you slimy syphilitic bastard!”), he broke down in horrible sobs, causing proceedings to halt temporarily.

Brought back to the stand, he explained the out-of-context texts, and gave them context, stating that if the rest of the conversations were shown, it would explain much about them.

Story never wavered

He explained the sequence of events of the day in question, his detail never wavering from the two previously-recorded interviews with ISP as regards how she was tormenting him that morning about being “I’m so perfect” despite her assertion of having left the front door unlocked; throwing a box of trash bags around the apartment violently, telling him “It’s either you or these trash bags”; how he tried to keep himself under control, venting to Shumaker on his iPod touch in order not to “say something stupid that would set her off”; and finally, realizing how drunk she was, pouring her Jim Beam down the drain. He described the fight in detail as it had been presented many times: He’d flung her off him and she fell to the floor, then when she came back at him, they’d struggled and she’d tripped, falling backwards and taking him with her. When he struggled with her on the floor, she may have struck her head again, as she was flailing, but he was trying to get off her. When he succeeded, he was up only for a few seconds when she came at him again, this time telling him she was going to kill him, cornering him with her right hand while reaching for the chef’s knife (which was found by ISP still in its place) with her left, when he somewhat blindly reached for the steak knife and stabbed her in rapid succession. She looked at him briefly before falling backwards again, from which position she didn’t get up.

“As she reached for the knife, I felt like, my God, she’s really meaning it this time,” he said.

Isaf tried to get a stumble

On cross, Isaf (now alone at the state’s table, as Parkinson hadn’t been present for the proceedings the entire day without explanation) made a weak attempt at getting Payton to stumble over his disparity of size by comparison to Kathie; her multiple physical ailments; her condition under the influence of alcohol; and other factors that “showed” that he overpowered her and “beat her head mercilessly.”

Yet despite what he probably considered his best efforts, Isaf came away from cross exam appearing to have gone over a set of false facts with someone who had lived the truth and knew better; Terry Payton explained more of the state’s gaping holes in the non-contextual texts and why Terry took the actions he did than even the defense had.

The only thing Isaf did differently than McIntire had was: he didn’t make Terry Payton weep on the stand.

Closing

Isaf’s closing focused again on the random text messages. It was the state’s contention that Payton, if not actually planning the murder, had it in his head that this was what he was going to do, and when he saw an opportunity, he took it. Isaf believed Payton changed his story between the two interviews, even though it’d been Isaf who’d elicited testimony from McCormick that sometimes, even police officers who’d had to kill when threatened could think more clearly and remember more the next day.

McIntire somewhat stumbled through his closing, reiterating Payton’s version of events that had never varied from day one, and how Dr. Frey’s exam of the boy had turned up exactly the type of mental abuse that would prompt him to react in the way he did after the stabbing and his mother’s death at his own hand.

Isaf concluded by showing the most salacious texts (about “knife to their throat” and “burying a mother”) on the same projection screen as autopsy photos of Kathie.

Jury wanted to go home

The jury had been instructed that they had the opportunity to find Second-Degree Murder in place of First-Degree, but must find First-Degree (with intent) first, then mitigate it by the factor that Payton himself believed his life was in imminent danger, but the belief was not realistic.

Given the case shortly after noon on Feb. 28, the jury returned with a guilty of Second-Degree shortly after 5 p.m. They had been able to enjoy both lunch and dinner on the county.

Inside information revealed that four of the jurors believed Payton to be guilty of First-Degree; four, guilty of Second-Degree; and four not guilty. The ‘not guilty’ four were swayed by the others when the dinner hour approached and many began expressing a desire to get it over with and go home.

Interestingly, Kathie Payton’s sister Jan Burno was not present for either the closing arguments nor the verdict…as if she had already been advised of how it was going to go, and was satisfied that her nephew, whom she has repeatedly called “a cold-blooded killer” of the sister she hated all her life until her death, was going to have justice served against him.

However, because of Terry Payton’s young age and the fact that he has no criminal history whatsoever, these are factors that may play into his favor.

Second-Degree Murder is a probationable offense, unlike First-Degree Murder. While it’s possible he could be sentenced only to probation, Payton will likely be sentenced to a juvenile facility. His sentencing range is from four to 20 years, depending upon mitigating/aggravating factors. He has spent nearly two years in jail, which will be considered time served. His next-likely sentence could, therefore, have him out in two years.

A petition for Edgar County residents to sign for leniency in sentencing is circulating.

A fund has been set up to assist in legal expenses at First Bank and Trust, 101 S. Central Ave., Paris, Ill., 61944, The Terry Payton Legal Assistance Fund, acct. #01-600708-3

For those interested in sending Terry Payton words of encouragement prior to his April or May sentencing, write to Terry Payton, c/o Edgar County Jail, 228 N. Central Ave., Paris, Ill., 61944.