Prison Made | Cover Story | Salt Lake City Weekly

February 28, 2013 News » Cover Story

Prison Made 

From convicted murderer to in-house prison reformer, Paul Payne's not done fighting for his life

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Paul Payne was 16 the first time he was locked up.

Payne was being held in a juvenile detention center for a spree of car break-ins in his hometown of Colorado Springs, Colo.

“I’d look out my window to the very places I’d ride my bicycle,” he writes from where he lives now—a cell in Uinta 1, the Utah State Prison’s maximum-security wing.

Late one late night in July 1990, Payne tied his bedsheets together and escaped through a detention-center window. While en route to “sunny” California, he was arrested in Price, Utah, along with two juvenile friends he’d met post-escape, for car theft and joyriding.

The guards at the juvenile detention center in Price threatened them with prison, where, the guards said, the boys would be “raped or killed.” The three juveniles decided to “grab the guards and push them in the cells, lock ’em in and leave,” Payne writes. But it took more force than they had anticipated, “and the guards were more fragile than we considered.” Both guards were injured—one with a broken arm and dislocated shoulder, the other knocked unconscious.

Payne and his two accomplices found a car idling in a trailer park with an 8-year-old boy in the passenger seat. They took him out of the car, put him on the front porch, then took off in the station wagon, not realizing there was a 5-year-old girl asleep in the back. “It was only after the car chase began that we discovered her,” Payne writes. Payne, who was driving, rammed several police cars before sliding off the road.

Seventh District Court Judge Boyd Bunnell sentenced 16-year-old Payne to five to life for aggravated assault, aggravated robbery and kidnapping.

“So, I was free my first 16 years of life and have been incarcerated for the other 21 years,” Payne writes in his neat, careful handwriting from cell No. 305, on what’s called “the low side” of the prison’s maximum-security wing, Uinta 1. He’s allowed out of his 7-foot-by-11-foot cell for one hour and 15 minutes, which includes his shower time, three times a week. “I’ve done most of my 21 years in some sort of [solitary],” he writes. “It breeds hate, misanthropy and it’s difficult not to succumb!” He writes later, “Sometimes you feel like you’re slipping into darkness.”

Part of that darkness comes from Payne having to endure the ranting and verbal abuse of mentally ill and predatory individuals in neighboring cells, whom he cannot see and can only communicate with by shouting. He cites an example in a court filing: “For the last two months I have been exposed to a deaf child-molester-rapist who rants and raves that ‘having sex’ with a 6-year-old little girl is not rape/molestation because she ‘consented.’ ” Uinta 1 inmates are not allowed earplugs. Payne fashioned some from cardboard, “but they’re rough on the ears.”

The prison’s response to his complaint is simple, according to a motion by the Attorney General’s Office, the counsel for the prison when it comes to inmates’ civil-rights complaints. “There are depressed and suicidal inmates throughout the prison. Plaintiff has no constitutional right to live in a ‘happy’ housing unit.”

Payne doesn’t argue that he’s been wrongly convicted, acknowledging that he made “bad choices.” He just wants to be treated the same as other prisoners, who are punished for serious crimes committed within the prison by being temporarily housed in solitary. Payne has remained there for nine years, despite having had only three minor disciplinary writeups since 2003.

Utah State Prison spokesman Steve Gehrke says Intensive Management, under which Payne has lived for the past nine years, is “a tool” the prison uses to keep inmates who have shown violent or volatile behavior away from the rest of the prison’s population. While the prison “seeks to help offenders earn their way to less restrictive areas and improve their chances to rehabilitate successfully,” that does not include Payne, who, Gehrke says, “is an anomaly due to his particularly troublesome pattern of past actions.”

Kelli Christensen, a paralegal in the New Mexico Public Defender’s office who worked on a later case involving Payne, sees him as haunted by a life that ended when Bunnell sentenced him to life in adult prison. “He’s acutely aware of basically being stunted at 16 years old,” she says.

But whatever crimes took him to prison, it’s his crimes within the system that have determined much of his life since.

Payne says it’s a 1994 Utah prison murder that sealed his fate as far as Utah is concerned. He says he’s been serving “silent time” for an “off-the-books” conviction, not by the courts but by the state, for his alleged participation in the murder of inmate Lonnie Blackmon, which, Payne says, embarrassed the prison.

Though a 3rd District Court judge dismissed the charges against Payne at a preliminary hearing for lack of evidence, the Utah State Prison, the Attorney General’s Office and the parole board, according to court transcripts, letters and other documents, all view Payne as guilty of involvement in, if not being the architect of, 32-year-old Blackmon’s brutal death.

Under an agreement that allows states to swap dangerous prisoners, Payne was sent to New Mexico in 1996. Three years later, Payne and another inmate murdered a third inmate at a new private prison. Lea County Correctional Facility had seen three deaths in just its first year of operation, an issue a spokesman attributed to “growing pains” in local news reports.

Payne’s victim, a gang leader, had ordered Payne killed, according to prison reports. “I assume [such men] have the same propensity of violence as the state assumes I have,” Payne says. “I see somebody is a threat, I acknowledge that. It’s the nature of prison.”

After Payne was convicted of that murder, he was returned to Utah by New Mexico in late 2003, and has been held in solitary ever since.

Nine years later, Payne argues that it’s his civil-rights lawsuit against current and former employees of the prison that has kept him in solitary. Payne says the difference between himself and other inmates who have also committed violent crimes in prison—including assault, rape and murder, but spent only weeks or a few months in Intensive Management—“is that I’ve litigated and challenged the admin,” he says. More to the point, he has had some success in doing so.

Motion for Preliminary Injunction by Paul Payne

In 2007, federal Judge Dale Kimball dismissed Payne’s 17-count complaint about conditions in Uinta 1, terming its substance “well-disguised by needless argument and redundant fluff.” But in 2008, the 10th U.S. Circuit Court of Appeals partially reversed that dismissal, ordering Utah to look at Payne’s due process in regard to him being kept in solitary.

While prisons are well-known for being highly bureaucratic institutions that, as Payne says, “document everything,” documentation relating to Payne’s initial attempts to challenge his housing in solitary in 2004 and 2005 were “lost” by the prison. In addition, the prison was unable to produce documents relating to what the institution’s counsel said were multi-tiered reviews up the chain of prison administration of his housing from 2007 onward.

And when federal court Judge David Nuffer finally ruled on Payne’s complaint in late January 2013, Nuffer’s statement of the “material facts” concerning Payne’s history incorrectly stated that he had been convicted of crimes relating to the Blackmon killing.

Attorney General’s Office deputy chief Kirk Torgensen prosecuted three men for Blackmon’s murder, one of whom, Payne’s friend Troy Kell, is on death row. Torgensen says Payne evaded justice.

David Fathi is the national director for the American Civil Liberties Union National Prison Project. Solitary confinement, he notes, can be used to punish prisoners who pursue grievances against the prison, a complex process that has to be exhausted before a prisoner can file a complaint in federal court. It can also be used, he says, “to punish prisoners for behavior the state wasn’t able to get a conviction for.”

While Payne says Utah prison not only “raised me, but taught me everything I know,” Torgensen doesn’t agree. “I really wouldn’t buy into one iota that the system made him that way. He’s gotten everything in life he’s deserved.”

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Payne’s legal work draws admiration from the Attorney General’s Office’s Michelle Young, who, with Scott Cheney, represented the prison. His competency as a pro se litigant, on a scale of zero to 10, she says, Payne is a 10. Payne’s achievement is all the more remarkable given that the prison does not have a law library. In its place, it has multiple three- to five-year contracts with several law firms worth more than $1 million total. The firms provide counsel to inmates to help them prepare only initial complaints “designed to test either the legality of incarceration or conditions of confinement at the facility.” Payne’s progress through the legal system went beyond initial complaints, so he had to beg, borrow or otherwise obtain case law from sympathetic attorneys or repeatedly petition the courts.

He also had to battle misinformation introduced in court by the prison’s counsel that wrongly portrayed him as having been convicted of the Blackmon murder and falsely labeled him in sworn affidavits as “a snitch.”

That’s a tactic ACLU’s Fathi is familiar with. “Prisoners that are assertive, who file litigation, do experience retaliation in various ways, be it solitary, retaliation by the parole board or the addition of inaccurate information to their file.”

The Attorney General’s Office’s Cheney says, however, that the “snitch” label within the affidavits was a mistake. In large institutions like a prison, “assumptions get made, that’s what happened here.”

City Weekly learned of Payne’s legal battle to get out of solitary confinement a year ago. While Payne agreed to be interviewed, the prison rejected the request, citing security concerns. So for nine months, with the prison’s knowledge, a City Weekly reporter visited Payne as a “friend” once a month on Sundays, the day when death-row inmates, with whom the prison appears to classify Payne, are allowed barrier visits.

Payne says the prison’s perception is that keeping him in Intensive Management—as the “low side” of Uinta 1 is called—is what has rendered him relatively trouble-free in recent years. But, he argues, inmates on the “low side” have more write-ups than anybody else. A prison official admitted under questioning by Payne in an unprecedented evidentiary hearing Oct. 5, 2012, at the prison, that it is “pretty common” for Uinta 1 inmates, despite being under intense restrictions, to commit crimes.

“In Uinta 1, you can kill someone,” Payne says. “You have the time to plan. All you have is time.”

Aaron Kinikini represents numerous mentally ill inmates in Uinta 1 through the Disability Law Center. He’s currently suing the prison for access to his clients and has found that the prison does not always keep written records of the policies and decisions that it nevertheless relies on during litigation.

Kinikini has had numerous relatives in the penal system. “Inside a prison system, all bets are off,” he says. “You might very well need to kill someone in prison, under the survival code of the inmates.” At the same time, he says, “you are at the mercy of a [administrative] system that has all the machinery of the law behind it, and you’re alone. You’re constantly straddling those two merciless systems.” The state is about “the law, due process,” he continues, “and if they are not [providing due process] in a system where they have total control, then they need to be held accountable, and that’s what Payne is trying to do.”

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Payne was raised by his mother, Bonnie McBride, after his father left the family when he was 4. McBride says that for many years, she was a “functioning alcoholic.” Her son, she says, “as far as taking care of himself, had to be a man long before his time.”

Payne writes that he’s never “had fear, per se. I’ve been fighting grown men since I was a kid. I grew up around bikers, ex-cons and military dudes. They taught me how to fight, a few strategies of combat, but, sadly, they taught me nothing about the law, prison or the judicial system. Fact: Criminals believe they won’t get caught.”

Payne began his life in prison in the Department of Correction’s Gunnison facility in central Utah. Paralegal Christensen argues it took a while for Payne to understand his future. “In Paul’s teenage brain, you really don’t realize how long it is.”

According to Payne, days after he arrived at Gunnison in 1990, several inmates threatened to take his shoes after he got out of the shower. He challenged them that they would have to make a “sacrifice” in order to get them. They laughed and backed off, but the teenage Payne, his head full of TV movies of prison life, asked his cellmate for a shank. Looking back, he believes his “cellie” laughed with other inmates about “the crazy kid.” That’s how his “legend” was born, Payne believes. “Without a shot being fired!” Yet, he continues, “my worst fear was realized, life in prison! I was never afraid of being raped or killed, only of not being free. And now I’ve buried myself. So that’s my sacrifice.”

On Aug. 9, 1993, a SWAT team shook down some cells in Gunnison and found what prison officials thought was a homemade shank. An inmate claimed it was a metal scrap used as a screwdriver. Inmates refused to rack in to their cells, and the protest quickly deteriorated into a riot. While Payne is not cited as an instigator in the riot, according to a lengthy report by a sergeant present at Gunnison during the incident, he was an active participant in the property destruction that caused almost $40,000 worth of damage. SWAT took control of the facility four hours after the start of the riot—described by one witness as “more like kids having a temper tantrum than a riot.” Three years later, Payne was convicted of riot and criminal mischief.

While the report notes that no officers or inmates were harmed, in a letter, the Board of Pardons wrote that Payne’s actions during the riot “escalated the situation to the point that several Corrections employees feared for life and limb.” The board noted Payne demonstrated “that he is concerned about maintaining his image and not becoming subject to dominance and harm from other inmates.” It ruled it would not review his case for another 10 years. It was then, Christensen says, that Payne realized, “they had locked him up for good. He was thrown away and he knew it. He was done.”

A year later, Payne got into an argument with inmate Lonnie Blackmon outside the latter’s cell. They exchanged blows, shook hands, then, Payne says, Blackmon sucker-punched him.

Several days later, Payne’s friend Troy Kell stabbed the shackled Blackmon 67 times, while a second inmate lay over his legs and Payne, in a nearby shower stall, was alleged by prosecutors to have held Blackmon’s leg.

Payne was charged along with Kell and two others. But 6th District Court Judge Don V. Tibbs threw out Utah’s case against Payne. Tibbs ruled that he “did not find probable cause to believe [Payne] committed the crime charged.” Torgensen believes Payne meant to kill Blackmon himself but, due to a glitch in the plan, Kell took his place.

Payne would not comment on Blackmon’s killing, which prosecutors and the news media characterized as a racist murder by white supremacists. In one letter, though, he writes about prison murder, “I know that a dead person’s loved ones suffer more and longer than the deceased. ... At the same time, some murders are not meant to punish but to protect, are not for vengeance but prevention.”

The killing remains one of the most haunting, graphic prison murders captured on video. Kell stabbed Blackmon in the eyes, face, back, chest and stomach, walked away, then, when he saw Blackmon was still moving, came back and stabbed him some more. Afterward, a blood-spattered Kell took a towel and wiped his forearms clean of Blackmon’s blood.

Payne says prison violence will always be ugly. “In prison, you have a dull-ass piece of metal.” Such “inferior tools,” he says, “make prison violence brutal. It’s unavoidable.”

Years later, after being transferred to the private New Mexico prison, Payne was put in solitary because Ricardo Garcia, the 47-year-old president of the prison gang Syndicato de Nuevo Mexico, had ordered Payne killed, according to a memo to Payne from an associate warden. Payne, however, struck first.

On June 17, 1999, Payne, then 25, and another inmate asked a guard to open Garcia’s cell under the guise of delivering laundry. In seconds they stabbed the screaming Garcia 37 times in the back, chest, neck, head, face, arms, hands and legs, then left, Price shouting out “white power” as they hurried away.

“Inmate Payne and Price took advantage of the inexperienced staff in segregation and the inconsistent procedures, gained staff trust and then executed a well-planned hit when the opportunity presented itself,” a guard wrote in a report.

Prison authorities told Payne he should have gone to them for protection after Garcia ordered his death. He says he told them, “I see you can’t protect him from me, you can’t protect anybody.”

Prison is too “messed up an environment” for guilt or remorse, Payne says. “This guy never knew me and all of a sudden, he’s plotting my death. He’d let some minions do it. That was evil. Am I supposed to shed tears for that?”

Payne took a plea deal on Garcia’s murder, accepting a life sentence in exchange for New Mexico taking the death penalty off the table. Shortly after, he was transferred back to Utah. While Payne says Utah had to take him back because of the compact agreement, the AG’s Young says no other state within the compact would take him.

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Payne worked his way, through good behavior, out of administrative segregation in New Mexico and back into the prison’s general population. But when Payne returned to Utah in December 2003, he was housed on “the low side” in Uinta 1, where he has remained ever since. The low side is where mentally ill inmates are held, along with those who, having committed violent crimes in prison, are typically held for 30 to 60 days before being moved either to the slightly less restrictive “high side” of Uinta 1, which also holds death row, or to Uinta II, which houses the Severe Threat Group (STG) inmates, two to a cell.

STG is where Payne argues he belongs, since the security restrictions for STG are the same as Intensive Management. “The prison admits to housing rival gang members, known enemies, on the same sections in U-II, which is a clear and powerful admission that the units and cells are secure. The only difference is I’d have a cellmate. I’ve submitted lists of [and affidavits from] at least a hundred prisoners who would sign waivers to be my cellmate.” The prison, however, views him as having conspired with others to commit violence acts and refuses him a cellmate. Young said in one hearing that Payne was viewed by the prison as so dangerous, the only way he might be allowed out of solitary is if he were to develop Alzheimer’s or become quadriplegic.

Payne argues that the prison has struggled to find ways to justify holding him in solitary. At the beginning, in 2004, it was that he was involved in high-profile murders and that he should be kept apart from Troy Kell. Payne then pointed out in his litigation that he could be held in equally restrictive housing in Uinta II, where he would have a cellmate. Then, prison officials erroneously claimed in affidavits he had snitched on Kell for the Blackmon murder. For his own safety, they argued, he needed to be kept on his own.

Labeling an inmate a snitch can be akin to a death sentence. Payne sued former Uinta 1 Capt. Bryant Herman in 2010, one of two “authors” of sworn affidavits in which Payne was identified as testifying against Kell. That suit was settled by the prison paying Payne $500 and his legal expenses, along with Herman writing a Dec. 1, 2012, letter to Payne stating that the inmate had never testified against any Utah State Prison inmate. While Herman, now deputy warden of the Uinta facility, wrote that any such claims in affidavits “drafted by others for my signature” were mistaken, Payne says, “they were blatant lies.”

Judge Nuffer asked in the December 2011 hearing if it’s the case that the Offender Management Review section hearings, which prisoners can attend, are built “on the presumption that there’s progression” for prisoners to improve their quality of life through less-restrictive housing and accessing educational and other programs. The Attorney General Office’s Young said progression was reflected in Payne’s privilege level, which is slightly less restrictive than his neighbors’. She noted it goes up and down depending on his behavior. But privileges such as a few books or extra sheets of toilet paper to clean his cell with meant little, Payne replied, when “I’m around mentally ill people that smear feces on themselves … that bang on their doors consistently for days on end.”

Payne wonders why the prison is “in the habit of making choices that are the most abusive and least productive.” He and his mentally ill neighbors, he writes, are subject to isolation and denial of therapy, programming and human interaction. The prison refuses “to make this a more productive, less torturous environment.”

Payne proved not only an adept jailhouse lawyer but also an articulate advocate for others in his unit in letters to the media and politicians about their living conditions. He befriended inmates such as Jeremy Haas and Ryan Allison, both of whom were featured in the 2012 City Weekly cover story “Lost in the Hole,” about how the prison keeps mentally ill inmates in solitary.

In one of his filings, Payne noted he has had no access to a TV, radio, CD player or watch and “has not known the precise time in over seven years.” His narrow window to the outside is filmed over with dirt, despite his many requests to have it cleaned, so “I can’t really see out the window to watch the shadows, the stars, or lights.” He writes in a filing that he has had no human contact, “not even eye contact has plaintiff had with other prisoners for over seven years and very little with staff.” He struggles to clean his cell with only “five paper towels and three soap balls per week,” the filing states. “Never a toilet brush, broom, mop, etc., while he also has to eat in his cell.”

As the years wore on, and his challenges to his housing were denied again and again, a new fear emerged of “going crazy, of losing my mind, and that is totally associated with being caged,” he writes. “I fight this, analyzing everything, introspection ... [Is] my perception correct or incorrect?”

Initially, prison officials had told Payne that if he behaved himself, he would get moved out of solitary. “If you wish to be moved to a regular housing unit, you can, by governing your behavior within the parameters of policy and procedure,” was a response to one of his many grievance filings with the prison. But as Payne continued to file grievances about his housing and the conditions of Uinta 1, he learned he would probably never get out.

“You have an Executive Director Override and it is going to be a very long time before you are ever intentionally allowed unimpeded contact with another human being,” wrote prison administrator Tom Anderson. “You have earned this, and it is appropriate.”

On Oct. 5, 2012, a shackled Payne shuffled into the makeshift courtroom in Utah State Prison shortly after 9 a.m. Since the prison didn’t want to transport Payne, Judge Nuffer brought his court to the prison. That Nuffer went to Point of the Mountain “was a big event,” Cheney says. “It certainly reflects on the court as to how seriously it took this case.”

An Executive Director Override [EDO] is a two-line policy. It gives ultimate authority to the prison’s top director to both invoke and remove the override, which stops a prisoner from being moved from his current housing. While a classification-review officer was responsible for reviewing inmate challenges to an override, testimony at the hearing revealed there was no avenue to appeal the officer’s decision, which Judge Nuffer found “troubling.”

During the five-hour hearing, Nuffer focused on whether Payne had had due process when it came to the EDO that kept him in solitary. Prison officials testified—and answered Cheney, Young, Payne and Nuffer’s questions—providing at times contradictory answers as to whether Payne or low level prison officials could or not challenge his housing.

According to court testimony that day, an EDO requires officials at multiple levels in the prison’s administration to review the order. But Nuffer later ruled that “many of the documents purportedly generated over the years in relation to Plaintiff’s EDO reviews have not been produced in this litigation.”

That’s because, Payne argues, they don’t exist. “They’ve done nothing. They’ve never reviewed it.”

Young had told the court in a 2010 letter that the missing documentation may have been “lost” when the prison went from paper to digital, an explanation Nuffer found in his ruling was “plausible.”

What made that explanation confusing was that at least one official testified the switch to digital took place before Payne’s return to the prison in late 2003. Even Executive Director Tom Patterson admitted to Payne in court that he was “scratching his head,” over the missing documentation relating to Payne’s classification.

After the hearing, Payne was elated, concluding, “The admin staff were in so much conflict, there’s no way any reasonable person could deem I got due process.”

Nuffer didn’t agree. On Jan. 25, 2013, he released a 45-page ruling finding for the prison. The judge detailed Payne’s criminal history, including incorrectly stating that Payne had pleaded guilty to charges related to the Blackmon murder.

Judge David Nuffer's Memorandum

Cheney says such a mistake is “harmless error,” a legal term meaning it did not impact the decision. Payne disagrees, since such “material facts ... amount to what’s keeping me in here.”

Nuffer noted that Payne’s behavior in prison had qualified him for less restrictive housing, but that had been denied because of his EDO. Payne’s strongest argument, Nuffer felt, was that the lack of documented comment by the prison at the beginning of the EDO “shows that there was no reasoned examination at the highest level and that the override was merely rubber-stamped.” While the lack of a written EDO review policy “creates considerable risk that an erroneous deprivation might occur,” he could not say there was “inadequate process,” and, as such, dismissed Payne’s complaint and closed the case.

Cheney commends Nuffer, the prison and Payne. “To their credit, this case has resulted in some productive guidelines and suggestions that will find their way into day-to-day prison life eventually and, hopefully, will deter future lawsuits.”

Two days after Payne got the ruling in the mail, he received a letter from the Utah Board of Pardons, which, following a request from the prison to review his case, informed him that he would be paroled April 9, 2013, seven years ahead of when his sentence was terminating.

But his time in prison is far from over. He now goes to New Mexico to serve 30 years for the Garcia murder. After that, he will return to Utah for the parole board to decide if he can be released or not.

Payne has mixed feelings about leaving Utah. “Nowhere else I go will I have it as bad as I did here, but at the same time, they’ve skirted responsibility, they’ve defied justice.”

Payne attributes his survival to his unrelenting determination to face reality. “It seems so destructive not to,” he says. In the end, Payne is a man in a cell who, the Disability Law Center’s Kinikini says, “stood up against the machinery of the state, which is in its most brutal form in the prison.” Rather than fill his pleadings with the inmate stereotype of lies and claims of innocence, Payne proved a thorn in the side of the Department of Corrections by simply “sticking to a task,” Kinikini says.

“It’s part of my nature to think, ‘If I’m going to get beat up, well, why not fight back?’ ” Payne says. 

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