EDGAR CO.—The attorney for convicted teen Terry Payton has filed a Motion for Judgment of Acquittal or New Trial in Edgar County circuit court, this coming 30 days after the boy was convicted of Second Degree Murder for the stabbing death of his mother, Kathie Payton in June 2011.
Payton, now 17, remains incarcerated in the Edgar County Jail pending pre-sentencing investigations and an actual sentencing in the case, which was expected to occur at the end of April.
Now, however, it’s unclear which direction the case is headed, as no action has been taken in the newly-filed motion (filed March 29) and no sentencing date had been set as of press time (April 14).
The motion asks specifically for either an acquittal—as opposed to the conviction, meaning the attorney, Bob McIntire of Danville, is asking for a reversal of the decision the jury made on the night of February 28, 2013—or, alternatively, a new trial.
Reversible error No. 1
He states six reversible errors as reasons for the request:
The first is that Payton “was not proved guilty beyond a reasonable doubt of Second Degree Murder.” While the evidence presented in the six-day trial “established the existence of a mitigating factor (italics ours) by a preponderance of the evidence, for which reason the jury returned a verdict of guilty of Second Degree Murder, the prosecution failed to prove beyond a reasonable doubt that (Payton) was not justified in using the force which he used.”
Simply put: Payton was on trial for First Degree Murder, not on trial for Second-Degree Murder, which statute states that the accused still commits murder with intent (First Degree), but that he believed that his life was in imminent danger when the facts show that there really was no imminent danger.
The prosecutor, Mark Isaf, didn’t argue or establish that fact; he only argued/presented the case of First Degree Murder.
Second Degree Murder was added as a lesser charge for the jury to deliberate when the case was handed to them, and offered as an alternative conviction.
Reversible error No. 2
The second error, says McIntire, is that Payton was prejudiced (the jury held it against him) by the court’s (the judge)”sustaining of a prosecution objection to testimony of Dr. Frey, which, had it been admitted, would have established that Payton’s stated behavior during the altercation that led to his mother’s death was consistent with battered child syndrome.”
Payton, the defense proved, was living with an increasingly-abusive alcoholic whose violence was intensifying as Payton reached his teens and outsized his mother; yet she still held sway in his life because of what experts call “Battered Child Syndrome” (BCS) wherein a child in an abusive home continues to do what the abusive parent tells him to do, despite the threat or presence of abuse, because of severe co-dependency. This was what Frey, paid by the state to evaluate Payton while he sat in juvenile detention but whose evaluation was more favorable to the defense than to the state, was set to testify about at length, but an objection by the assisting prosecutor Ed Parkinson was sustained by Judge Steven Garst. The state had tried to suppress Frey’s testimony and appearance altogether, an attempt that failed, but the objection to further divulging Frey’s expert analysis of BCS was upheld, and she couldn’t elaborate further.
“While witnesses may not simply comment directly on the credibility of other witnesses,” the new motion reads, “they may offer testimony that a victim’s account is consistent with accepted knowledge in a witness’ field of expertise,” this, of course, being Frey’s.
Simply put: Because the jury wasn’t afforded the opportunity to hear all of Frey’s explanation on BCS, they were prejudiced against Payton because they didn’t get the chance to fully understand why he acted how he did, his actions being attributable to BCS.
Reversible error No. 3
The motion’s third paragraph states that Payton was prejudiced when the prosecution was “permitted to impeach Dr. Frey by omission by establishing that she had not specifically stated in her report the diagnosis of ‘Battered Child Syndrome.’
“The prosecution did not establish that Dr. Frey ought to have been expected to state a specific diagnosis or that it ought to be expected that she would have done so had that been her diagnosis,” the paragraph concludes.
Simply put: While the prosecution was allowed to ‘impeach’ Frey (turn her testimony invalid by calling into question her credibility) ‘by omission’ (leaving something out; in this case, the specific diagnosis of BCS, which Frey did not put in her 2011 notes, but only brought up in court), the defense says that shouldn’t have happened because her ultimate diagnosis should have been ‘expected’ to be rendered—and it was. That it was rendered in a court setting, the defense is stating, should have been immaterial: the state should have known that she was going to come into the courtroom and give a diagnosis, as that’s what the state had paid her to do in 2011 after Payton was detained. That the defense had called her as a witness FOR Terry Payton, and that the state didn’t call her to be their witness, spoke volumes.
Reversible error No. 4
The fourth paragraph elaborates on the third:
Payton was prejudiced by the judge sustaining the objection to testimony, on redirect (by the defense) concerning the content of Dr. Frey’s report, once the “impeachment by omission” had been supposedly established.
“Dr. Frey would have testified on redirect examination that her report contained statements that (Payton) had a history of psychological abuse;
that he felt he had no adult to care for him, so he had to be an adult;
he had nobody else in his life to care for him;
that he was in many ways dependent on his mother;
that he loved his mother;
and that he was terrified of being alone regardless of the fact that his mother was an alcoholic who was frequently abusive.
“This testimony would have demonstrated to the jury that Dr. Frey had made a number of statements in the report supporting a diagnosis of ‘battered child syndrome,’” the motion states.
Simply put: The defense is attempting to bring in that while Dr. Frey may not have written the term “battered child syndrome” in her report, she did write in every fact of the diagnosis…yet she was disallowed to give that testimony from the stand. Had she been able to give it, she would have been able to paint a clearer picture of what Payton was undergoing in his home life, and the jury might have been able to see that he was indeed in fear for his life when he took the actions that he did which ended his mother’s life.
Reversible error No. 5
The motion then states in the fifth paragraph that Payton was prejudiced by Garst sustaining objections to testimony “that Kathie Payton had, on May 20, 2011, telephoned school personnel at Paris High School and stated angrily to ‘tell that female dog to back off,’ that she didn’t need her interfering in her child’s life, and that she knew where the ‘female dog lived’ and ‘that’s not a threat!’”
This testimony, being disallowed, was not elaborated upon in the courtroom and so it’s unclear from whom it would have been elicited, and the motion doesn’t say; likely, it was about to be given by one of the school personnel on the stand (and there were many), the state saw it coming, and stopped it before it could come out, since they already would have learned about it in discovery.
However, it does point out that “in context with other evidence, this would have demonstrated that Kathie Payton threatened potential violence to school personnel either for having telephoned DCFS or for having referred Terry for counseling.
“(Terry) believes the court sustained the objection in part because the threat was not made to or concerning him; however, by analogy, the prior battery convictions in People v. Lynch all had to do with other victims.”
In addition, the motion stated, the proffered testimony would have evidenced Kathie Payton’s controlling and abusive behavior as regards her efforts to keep Terry from exposure to mandated reporters (for DCFS) who would potentially interfered with her control of her son.
Simply put: The state was busy attempting to “sanitize” Kathie Payton for the jury, as it would have been bad for their case if her tendency toward violence and threats of violence became clearly known, both for their frequency and escalation. The fact that these escalated exponentially in the weeks before her death should have been allowed in as evidence by for the defense’s case…but the state sought to—and succeeded, as in this instance—in suppressing such information, so that the jury would be lead to believe by Isaf’s concocted story that Kathie Payton was a helpless, slobbering drunk who was mortally set upon by her raging son and murdered with malice aforethought…instead of the violent, somewhat sadistic woman she actually was, who attacked her son with the intent to do him great bodily harm at the very least.
Reversible error No. 6
The final error McIntire is claiming is a big one, because quite the fuss was made in court over it: “The court erred in admitting those autopsy photos that reflected the work of the autopsy surgeon; such photos were more prejudicial than probative (proving something within the constructs of the law—ed.). In particular, (Terry) objected to and now objects to the admission of People’s Exhibits #33, 34, 35 and 37.”
There had been much arguing about whether the autopsy photos—one of which showed the inside of Kathie Payton’s face after her skull had been cut open and the facial plate had been removed—were even going to allowed in as evidence at all, as the defense objected so strenuously to them. In fact, one of the photos was shown to the jury in the course of the trial that had already been determined to be omitted from the course of the testimony. Isaf called the presentation of that photo an “accident”…yet when the defense began talking about a mistrial in a sidebar about it, Garst shut it down and refused to hear mistrial, merely sustaining the defense’s objection over the photo’s display, and telling the jury to disregard the photo (which, apparently, they did not.)
However, mistrials have been declared upon lesser circumstances; therefore, an overturn of a verdict on a reversible error such as this wouldn’t be out of the realm of possibility.
Can Payton get a new trial upon ruling of the motion?
But, given that Payton has been convicted of a probationable offense (First Degree Murder is mandatory prison; Second Degree can carry, at the low end, probation only for a first-time offender of good character), would a new trial (short of a full-out acquittal/overturning of the jury’s verdict) be a good idea?
Ideally, the acquittal would be the desired outcome. The jury, it’s been revealed since the verdict, was split three ways: four were in favor of acquittal, four in favor of the lesser charge of Second Degree Murder, and four in favor of the initial charge of First Degree Murder. The ones on the outer edges were convinced to go toward the middle, and a unanimous verdict of Second Degree was reached within four or so hours. However, the four giving up the presumption of innocence were the four swayed that bothered so many people in this case. And part of what swayed them, Disclosure has learned since that time, is that Garst was threatening to sequester the jury for as long as it took—including the upcoming weekend if necessary—in a hotel in Champaign until they came to a unanimous verdict. The four in favor of acquittal couldn’t convince, at the very least, one of the male jurors who announced early on in the deliberation process that he “knew that kid was guilty and nothing was gonna change my mind about it!” Someone like that being on a jury, and no amount of evidence displayed being enough to convince him, is oftentimes enough to overturn a conviction, as that juror did not uphold his oath of objectivity from the very outset.
Conversely, it may be the better bet to allow sentencing to take place, and if the sentence is ridiculously long, appeal that instead of appealing the verdict. The possibility remains that Payton may receive time served (two years in June) and with an additional two years incarceration, be on the low end of a Second Degree Murder conviction sentence. He will most likely be allowed to serve the other two years in a juvenile facility, as he will still be a juvenile when sentenced, and of course he was a juvenile when the crime was committed.
Public support is with Terry
Whatever the case, public support is on the side of Terry Payton. In fact, the only ones who appear to have been against him are the authorities, the jury and of course his insane aunt, Kathie Payton’s sister Jan Burno. The corruption being what it is in Edgar County, public sentiment was with him from the beginning, as so many people knew Kathie Payton to be a raging alcoholic and violent and abusive parent, already having had one child taken away from her early on because of neglect.
The general consensus is that there was something hinky going on with the jury and the public officials from the outset. A new trial might rectify some of it; but, as the defense learns from a failure what to do and not to do in a re-trial, so too does the state. And so the defense will have to fight even harder if Payton is afforded a new trial, and such a fight takes investigation…and investigations are expensive. While Payton has received some funding in his defense trust fund, it’s never enough.
Those interested can contribute to the fight by sending monetary help to First Bank and Trust, 101 South Central Avenue, Paris, Ill., 61944 for credit to the Terry Payton Legal Assistance Fund, account number 01-6007081-3. And of course, anyone can put money on Terry’s books at the county jail, where he can purchase minutes for phone calls, stationary and stamps for letters, and other comforts as he awaits the outcome of the latest motion filed in his case.