The Wrongful Conviction of Jason Payne
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Forensic Case

Introduction: The heart of the State of Texas’ forensic case of double homicide revolved around two theories. Theory # 1: Taylor Wages was shot sometime in the early morning hours of December 11, 2007 by Jason Payne before the shooting of Nichole Payne occurred, meaning Taylor couldn’t have killed Nichole and committed suicide.  Theory #2: Taylor was shot by Jason in a location other than his bed in the garage, meaning Jason moved the body to the bed, and staged the scene to look like a suicide; OR Jason shot Taylor on the bed and repositioned the body to look like a suicide.  Neither theory was correct! The police manipulated the evidence to fit their version of a double homicide and the prosecution presented their case based on these two falsehoods. Manipulating evidence is one of the reasons innocent people are wrongfully convicted and sent to prison for a crime they did NOT commit; this is what landed Jason Payne in prison for life.

Why the Need for a Second Forensic Expert: Why did the State of Texas need to recruit a second forensic expert?  Lt. Miles Tucker, the lead investigator on the case, in a rush to judgment made an almost immediate decision that Jason was guilty of a double homicide. This decision was made without any facts or evidence to support his conclusion. To validate this conclusion Tucker concurred with Texas Ranger Philip Kemp to send for Smith County Deputy Sheriff Noel Martin, a criminologist and crime scene reconstruction expert, to process the scene. Martin, a fellow police officer had always testified in the past as a prosecution expert at trials, so Tucker felt confident that Martin would validate his conclusion.

When Martin arrived on the crime scene to perform his reconstruction the bodies of Nichole and Taylor had already been moved and taken to the medical examiner for autopsies and examination. Why were these bodies, the most important evidence on the crime scene moved? Wouldn’t this compromise the crime scene? As a general rule, at a murder scene when the body(s) is disturbed or moved, evidence is often lost. What kind of evidence was lost at this crime scene? Why was no medical examiner called to examine the bodies as they were found by the police? In addition bedding from both Nichole and Taylor's beds had also been moved before Martin began his crime scene reconstruction. Was this just sloppy police work or was there some other motive behind these bodies and bedding being removed?

In a June 2008 meeting between Tucker, DA Jim Wheeler, DA Investigator Jerry Hirsch, Asistant DA Brandon Bade, and Martin, who at that time was listed as a member of the prosecution team and would have testified as a prosecution expert, At the meeting Martin presented his findings, based on a thorough inspection and analysis of the crime scene, and after examinating, reviewing and studying the evidence concluded the crime to be a murder suicide in which Taylor Wages shot his mother, Nichole Payne and then committed suicide by shooting himself. This came as quite a shock to Tucker. But instead of taking the word of Martin, a well respected forensic criminologist Tucker decided to obtain a second opinion from forensic consultant Tom Bevel. who could validate Tucker’s theory of double homicide.

Bevel based his conclusion strictly on police evidence, crime scene photos and Tucker’s case report that was biased on his conclusion of a double homicide. Martin was the ONLY forensic expert that was ever present at the crime scene; Tom Bevel never visited the crime scene. Noel Martin's report was reviewed and his conclusion validated by Texas Rangers Kenny Ray and Brent Davis, as well as Bobby Henderson of Henderson Forensics and Joe Brasco an expert crime scene investigator. On the other hand NOBODY peer reviewed Bevel's work. Peer review in forensic cases is considered to be the standard in which forensic results are validated by one's peers. There were SIX experts that concluded the crime was a murder suicide versus one expert that concluded the crime a double homicide.

Tom Bevel is known in some circles as a "hired gun," his report and testimony was bought and paid for by the prosecution. Bevel has testified as an expert witness at cases that are being questioned and under scrutiny (Tom Bevel's Credibility under Scrutiny) because of the reliability of blood stain pattern analysis, and Blood Spatter – Some “Legal Stuff” that Bevel has based his reputation on. Noel Martin's report and testimony was NOT paid for by anyone. Noel Martin had plenty to lose by testifying for the defense, but he chose to do what was right. Noel Martin was quoted in a July 31, 2011 investigative story in the Tyler, TX Morning Telegraph "I have never been called to the scene by the state only to testify for the defense, and I have never called the media in regard to a case I am working on," he said. "This case was different. I will testify for Jason Payne all the way to the U.S. Supreme Court."

What is the Role of Forensic Experts: The job of the forensic expert is to look at the forensic evidence and base his conclusions SOLELY on that evidence; that’s exactly what Noel Martin did. He was NOT concerned with any circumstantial evidence because his examination of the forensic evidence showed him this was CLEARLY a murder suicide. When asked at trial if he had seen the circumstantial evidence beforehand would that have changed his conclusion, Martin said NO because the forensic evidence spoke for itself and painted the true picture of the crime. Tom Bevel on the other hand did what is called an event analysis or as he testified a "Holistic" view, in which he looked at the forensic and circumstantial evidence provided by Lt. Tucker in his case report. How much did Tucker’s case report of double homicide influence Bevel’s final conclusion? At the trial it appeared Tucker's case report had quite an influence on Bevel. Unlike Martin, Bevel DIDN'T base his analysis SOLELY on the forensic evidence and unlike Martin, Bevel was NEVER at the crime scene.

When Did Taylor Wages Die: Lt, Tucker, lead investigator in the case and D.A. Wheeler inferred that Jason shot Taylor Wages sometime in the early morning hours of December 11, 2007 (Prosecution Theory #1). For this timeline to be viable Jason would have had to wake Taylor up in the early morning, made him dress in his school clothes, shot him, staged the scene to look like a suicide, taken his two children to school, came back home and shot Nichole. There was no evidence presented that anyone present in the house heard a gunshot or any other disturbance in those early morning hours. Lt. Tucker stated later in his testimony that a shot from that 30/30 rifle would have produced a loud bang that could have been heard anywhere on that 12 acre property; yet in the stillness of the night no one in that household heard the rifle fired. Jason would have risked Nichole waking up, and discovering Taylor’s body, and remember at that time in the early morning hours Nichole would have been alive. Jason would have also risked his two children waking up and later in the morning wandering into Taylor's room inquiring why he wasn't ready for school only to discover his body. What was this theory based on and why did the police have to use it? When the police found Nichole’s body they stated she was warm to the touch and according to Tucker, Taylor's body was cold to the touch but not in rigor mortis as testified to by Texas Ranger Kemp; this caused Tucker to speculate that Taylor had to have been shot first. But in the autopsy report the Medical Examiner, Dr. Keith Pinchard stated Taylor's body was "cool" to the touch prior to refrigeration, NOT cold. In addition Dr. Pinchard stated Nichole's body was "cool" to the touch prior to refrigeration. This indicats that both Nichole and Taylor were shot at approximately the same time? It's important to look at the environment where both bodies were found. Nichole was in a heated room under bed covers with a t-shirt and sweats on, while Taylor’s body was found in an unheated garage, space heaters off, gaps in the metal garage door allowing cold air to come in, ceiling in garage two feet higher than ceilings in the house, and no blankets or sheets covering up Taylor. Body or ambient temperatures were not taken that could have pinpointed closely when Taylor was actually shot.Click to view Taylor's autopsy report. There was no evidence whatsoever to factually support the theory by Tucker that Taylor was shot in the early morning hours. The police and prosecution were forced into this theory because without Taylor being shot first their conclusion of double homicide wouldn't fit.

There was forensic evidence that supports the shooting of Taylor did NOT occur in the early morning hours as Lt. Tucker speculated. Dr. Michael Baden, a renowned forensic pathologist states that the eyes on a dead body cloud over within 12 hours if closed and within 2-3 hours if open. Dr. Baden teaches that those eyes which remain open and clear after death impart knowledge of a recent passing. Because Taylor died with his eyes open (Photos 52 & 56) and his corneas clear according to the autopsy report it’s apparent that Taylor, like Nichole was killed sometime between 8:00 AM - 9:00 AM of the morning of December 11, 2011 and NOT in the early morning hours (i.e. between 2:00 AM – 5:00 AM) as Tucker speculated. If Taylor was shot in the early morning hours with his eyes open the corneas would have been clouded, and not clear as stated in the autopsy report.

When Did Nichole Payne DieThe police were never able to define exactly when Nichole was shot. Click to view Nichole's autopsy report. It couldn't have been before Jason took the children to school because they would have been a witness to their mother's murder. So it had to be sometime between the time Jason took the children to school and returned home with his daughter. If Jason had murdered Nichole what did he do with his daughter who would have witnessed the shooting? Did he keep her outside alone or did she come into the house where she would have witnessed her mother's murder? Dr. Keith Pinckard, the medical examiner who performed the autopsy on Nichole's body testified that Nichole's cause of death was a gunshot wound to the back of the head. The gaping exit wound was consistent with that caused by a high-powered rifle fired at close range. The manner of death was identified as homicide or, as described by Dr. Pinckard, "death by the hands of another."  Noel Martin and Tom Bevel described Nichole's wound as a contact wound. With a contact wound there would be a high probability that back spatter from the rifle shot would have landed on the killer's body and/or clothes as well as the rifle. There was no blood found on Jason's body or his clothes The police found warm clothes in the clothes dryer inferring that Jason had taken off his clothes, put them in the washer to wash the blood off and then put them in the dryer. Tests run by Orchid Cellmark Labs reported there was no evidence of blood on any of the clothes in the dryer. According to forensic experts, machine washing does not typically remove all forensically detectable blood. Tests for Nichole’s blood on Taylor Wage’s hoodie came back negative; however the police only submitted one swab from the lower right portion of the hoodie and did NOT send any other swabs from that hoodie to be tested. We noticed there was blood mist on the upper left portion of that hoodie that could have been Nichole's blood. Why wasn't that hoodie completely tested for the presence of blood? if Jason couldn't have killed Nichole in the time frame inferred by the police, who did? The only person in that house at the time Jason took his children to school and returned home was Taylor Wages.

Why the Police were forced into Saying the Crime Scene Staged: Why was it necessary for the police and prosecution to state that the crime scene was staged to look like a suicide? The simple reason is because of the trajectory of the bullet that killed Taylor Wages. The defense theory of a suicide was totally supported by the trajectory of the bullet wound in Taylor's face. But for the prosecution to prove it wasn't a suicide they had to come up with other versions of how this trajectory occurred. Instead of accepting the simple explanation of suicide the prosecution had to manufacture evidence to show the trajectory of the bullet wound occurred somehow other than suicide.

There are two parts to the Prosecution's Theory. There is the "Tucker Theory" and there is the "Bevel Theory" both dealing with where Taylor was actually shot. Lt. Tucker was asked four times on cross-examination if he thought Taylor was shot in the location he was found. The first three times he stated “I don’t know.” The fourth time he stated “I don’t believe Austin (Taylor) committed suicide where he was found.”

For Tucker’s theory to be true Jason would have had to shoot Taylor someplace other than the bed in the garage where Taylor's body was found when the police arrived on the crime scene, moved and dragged the body to the bed, and "staged" the scene to look like a suicide. If Taylor was shot anywhere other than where he was found by the police where was the blood at this other ("phantom") location? Where was the blood trail leading from this "phantom" location back to the bed in the garage? Where was the bullet and bullet hole in the "phantom" location? How would it have been possible for Jason to clean up the mess in this "phantom" location so thoroughly that the police were never able to find or present any evidence that showed where this "phantom" location was?

The problem with Tucker’s theory is there was no evidence to support that Taylor had been shot anywhere other than where he was found. The reason behind Tucker's theory is that he knew Jason could never have fired the 30/30 rifle that killed Taylor where he was found on the bed and achieved the trajectory as stated in the autopsy report.

The Bevel Theory is that Taylor WAS shot in the location where he was found. Bevel stated that it was highly unlikely Taylor could have committed suicide, as claimed by the defense while he was in a seated position on the side of the bed, with the rifle on the floor positioned between his legs, aimed upward toward his face and having a trajectory as stated by the medical examiner. Maintaining the trajectory of the bullet wound, as stated by the medical examiner was critical to Bevel's theory. Here's how Bevel testified (7; 88 2-8) how the trajectory could be accomplished. Bevel testified "by simply rotating and moving Taylor’s head in line with the long axis of the firearm could produce the desired trajectory." What is the probability that Jason was able to rotate and position Taylor's head in line with the long axis of the rifle to obtain a trajectory that would look identical to a suicide; highly unlikely if not impossible? What was Taylor doing during this time while Jason was rotating and positioning his head so he could make Taylor's death look like a suicide; remember it was reported that there was no apparent struggle by Taylor?  An important conclusion of Bevel's on why Taylor's death was not a suicide was because there was NO blood or bio material on the carpet on the side of the bed where Taylor was found; Bevel stated the scene HAD to have been staged. BUT Noel Martin the only forensic expert to be present on the crime scene DID SEE blood, in the form of a blood mist on the carpet and tested it with BlueStar further confirming what he saw. According to Martin this blood mist could only result from a gunshot wound. Martin told Lt. Tucker in a June/July 2008 meeting with DA Jim Wheeler, Assistant DA Brandon Bade and DA Investigator Jerry Hirsch that he had observed blood on the carpet and tested it with chemicals. Did Tucker and Wheeler both ignore what Martin presented at that meeting? Bevel when asked at trial if he had access to Martin’s report stated he had the first report but not the second. Go to Prosecutorial Misconduct to see how a fraud was perpetrated on the court and how Bevel's theory of a staged suicide is just plain false.

Both the Tucker and Bevel theories were full of holes with no evidence whatsoever to back them up.

Noel Martin, the only forensic expert on the crime scene that day testified it would have been IMPOSSIBLE for a person to have staged the scene that he found.

The Bullet Trajectory that Confirmed a Suicide: Dr. Pinckard, the medical examiner testified that Taylor's cause of death was a gunshot wound to the face, with the entry point being his upper lip and the exit wound located on the back of his head toward the right side. The path of the bullet was front to back, upwards, and slightly left to right. The presence of soot and stippling on Taylor's face indicated that the gun was fired at a relatively close range. Dr. Pinckard listed Taylor's manner of death as undetermined because the nature of the wound and the estimated range of fire raised the question of whether it would have been possible for Taylor to position and fire the rifle himself. Noting the intermediate range from which the wound was inflicted, Dr. Pinckard could not rule out suicide. For Jason to activate the trigger and safety that low to the floor below Taylor's head and the floor would be extremely awkward if not impossible. To achieve the upward trajectory of the bullet wound Jason would have had to been crouched or lying on the floor right in front of Taylor's feet while Taylor was seated on the bed without taking some type of effort to defend himself, escape or shield his face from gunfire is highly unlikely; and remember there was no evidence whatsoever that showed Taylor but up a struggle of any kind. For Jason to be in the crouched or lying position, and not receive blood spatter and GSR on himself and clothing is unlikely. Another theory put forth by Tom Bevel was that Taylor's head could be rotated in such away to achieve the trajectory of the bullet wound. Once again try to imagine Jason rotating Taylor's head or telling Taylor to rotate his head to achieve the perfect suicide trajectory. Highly, highly unlikely. If Jason had fired the shot that killed Taylor it would have gone in at a much straighter angle instead of the upward trajectory that it did. The evidence shows that Jason was NOT the person that fired that rifle; it makes absolutely no sense. What makes sense is that Taylor positioned that rifle on the floor on the side of his bed and fired it from that position as shown in crime scene photos; that's the only way the trajectory of that wound makes any sense..

Rifle Positioning Confirmed a Suicide: Prosecution forensic experts Bevel and Ernest testified it would have been unlikely for Taylor to have fired that rifle from the position shown in crime scene photos and released the safety lever and pulled the trigger at the same time. Why did neither Tom Bevel nor Richard Ernest attempt to demonstrate to the jury how unlikely it would have been? Was it because they knew it could be fired from that position by a person of Taylor's size? When fdefense forensic witnesses Noel Martin and Ed Hueske testified how they had others (Martin had other deputies, and Hueske had his wife) demonstrate how easily this was accomplished including using the toe to pull the trigger. Furthermore both Martin and Hueske showed actual demonstrations to the jury just how easy this was to accomplish.

Gun Residue (GSR) Confirmed a Suicide: The police found no GSR on Jason’s hands, but a single particle was detected on the back of Austin's right hand. The prosecution inferred that Jason could have washed his hands to remove the GSR and that Taylor was close enough to the rifle when it was fired, by Jason that GSR could have landed on his hand. The more likely scenario is that Taylor had GSR on his hand from firing the rifle, and Jason had no GSR on his hands because he didn’t fire the rifle and was nowhere around when the rifle was fired.

Why the 30/30 Weapon Used in the Crime was Never Tested: No DNA testing on the murder weapon was ever done. See how the police tampered anddestroyed key evidence on the murder weapon to make their conclusion of a double homicide fit.

What the Testing of the Carpet Would Have Confirmed: Bevel testified that due to lack of blood and biological material on the carpet at Taylor's feet it showed that Taylor was not shot while in the sitting position as depicted by crime scene photos, which was necessary to the defense's case for supporting a homicide suicide. Bevel based his conclusion on crime scene photos that didn't show blood in that location. We viewed the same photos, and like Bevel we did not see blood in that location until we had the photo enhanced using special photo enhancement software and then was able to see the blood. Makes one wonder why a forensic expert like Bevel didn't didn't have that photo software enhanced. Martin stated “Blue Star testing was positive for the presence of blood on the carpet at Taylor’s feet. The blood on the floor was misted blood that occurs at the time of a gunshot wound (GSW). The blood spots were not visible without chemical enhancements such as BlueStar which Martin used to see blood. It was obvious that the blood on the floor was the result of the GSW to Taylor.” Bevel and Tucker testified they saw no blood on the carpet; Bevel didn't see any because all he had were crime scene photos to look at, but Tucker and his deputy sheriffs WERE present at the crime scene when Martin saw blood spatter on the carpet and saw Martin test it with chemicals while Martin explained to them what it was they were seeing and what it meant. Did Tucker, when testifying at trial conveniently forgot what he witnessed in Martin's presence at the crime scene or did he just lie when he testified he saw no blood on that carpet? Because LACK of blood on the carpet was critical to this not being a suicide why didn't the police cut off a piece of the carpet by the side of the bed and send it off to the lab for testing? Were they afraid test results would come back showing Taylor's blood on that carpet and destroy their theory of a double homicide? This is another common occurrence used by police in wrongful conviction cases. It is not necessarily withholding evidence but NOT testing evidence that might disprove their theory of how the crime actually occurred. To compound matter further the police never retained this carpet as evidence instead choosing to leave it in the garage, where it remains today and can't be tested again because it's now considered compromised.

The Blood Spatter & Soot Confirmed a Suicide: Much of the forensic evidence focused on the blood spatter on Taylor's face and the soot around the entrance of the bullet wound on Taylor's lip. The prosecution had to prove the rifle was fired at least 12” from Taylor’s face resulting in a non contact wound which according to Bevel would cast serious doubt of a suicide. According to Bevel the blood spatter on Taylor’s face, and the absence of soot found on Taylor’s lip indicted this was a non contact wound. However, prosecution witness Dr. Keith Pinchard, the medical examiner testified that there was a thin layer of soot found at the hole of Taylor's lip (6-148:18-23). The prosecution tried to get Dr. Pinchard to testify that because it was a very thin layer of soot that the rifle might have been more than 12” away when fired, but Dr. Pinchard said NOT necessarily. Noting the intermediate range from which the wound was inflicted, Dr. Pinckard could not rule out suicide. According to the prosecution’s theory if the rifle was fired more than 12” away than Taylor could not have fired the weapon, achieved the trajectory of the bullet wound and committed suicide. The defense expert witnesses (Martin and Hueske) showed in their testing, and reviewing the crime scene photos, autopsy reports and evidence that the presence of soot under Taylor’s nose along with their interpretation of blood spatter showed the rifle could have been between 4” and 10” away from Taylor’s face when fired, showing Taylor could have fired the weapon and achieved the necessary trajectory to commit suicide.

White Rag with Blood Was NOT Connected to the Crime: Prosecution witness Sgt. William Burge testified (5, 54, 16-25) that he found a white rag, behind the passenger seat in Jason's truck that appeared to have a bright red blood spot on it. In fact the blood was not bright red but was dried brown blood as shown in crime scene photos; the appeals court in their ruling agreed the blood was dried brown and NOT bright red as the police and prosecution stated at trial. The inference by the prosecution was that the blood on the rag was Nichole's and was a result of her being shot and killed by Jason. The blood was Nichole's but was not the result of the shooting. A few weeks before the crime Nichole sustained an injury from a fish hook that got caught in her neck near her carotid artery. She was holding the washcloth to her neck to stop the bleeding and that's why the blood in the photos looked dried and brown. She was taken to an urgent care center to receive medical help; it took about two hours to pull the fish hook out. There was documentation from the care center which Jason's sister Melisa Thickstun, who had worked in the medical field told Jason's lawyer to obtain so it could be presented at trial. Jason's lawyer never obtained the documentation, never presented anything at trial about the fish hook injury and let the prosecution’s inference go unchallenged.

Why the Jury's Verdict was Wrong: Because the jury handed down a guilty verdict they either had to buy into the forensic evidence presented by prosecution expert Tom Bevel and discard what defense forensic expert Noel Martin concluded, OR based their decision mainly on the circumstantial evidence of the case which is most often responsible for innocent people being wrongfully convicted, AND ignored much of the forensic evidence. Did this jury have the time and knowledge to really understand both sides of the complex forensic evidence in order to make an informed decision? They had to make their decision in "real time" after listening to six days of testimony including testimony regarding the circumstantial evidence of the case.

Many juries have limited knowledge of forensic science and are not always able to make well informed decisions. We are not forensic experts but after eleven years of working wrongfully convicted cases we probably have a little more knowledge of forensic evidence than the average juror. It took us months studying all aspects of the forensic evidence to reach our conclusion, and remember we had the time to study ALL the forensic evidence and NOT just the forensic evidence that was presented to this jury.

Our analysis of the forensic evidence showed us that this was absolutely NOT a double homicide but CLEARLY a murder suicide.