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DNA test indicates wrong man convicted of rape

(by Dena Potter, Associated Press, August 11, 2010, Link)

DNA tests conducted under Virginia’s one-of-a-kind post-conviction DNA testing program indicate that a man who served seven years in prison for a 1979 rape didn’t commit the crime, and he wants Virginia’s high court to declare him innocent.

Calvin Wayne Cunningham would be the eighth man exonerated by decades-old biological evidence and the third since Virginia began its massive project to clear those who may have been wrongly convicted in the 1970s and 1980s from biological evidence saved before DNA testing was available.

Cunningham, 57, was convicted in 1981 of raping the superintendent at his apartment complex in Newport News. He was informed in February that DNA tests eliminated him as a possible source of semen left at the scene, one of his attorneys told Virginia’s Forensic Science Board on Wednesday.

Cunningham’s attorneys asked the Supreme Court of Virginia in April to grant him a writ of actual innocence, officially declaring him innocent of the crime. The case was put on hold until DNA tests excluded the victim or her then-husband as the source of the evidence.

Cunningham, who is serving more than four years for theft and other charges, has steadfastly maintained his innocence on the rape conviction, his lawyers said.
“I still hold firm to my innocence,” he wrote to a judge in 1982, adding that if his semen was tested he knew that it would prove his innocence.

DNA testing wasn’t developed until 1985, and was first used in a criminal conviction in 1987 in Florida.

“He’s wanted DNA testing since before anyone knew what DNA testing was,” said Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project. “This, I think, vindicates him.”

Newport News Commonwealth’s Attorney Howard Gwynn did not immediately return telephone messages seeking comment. A spokesman for the Attorney General’s Office refused to comment.

“We cannot get into detail about our response yet, but when filed, it will speak for itself,” Brian Gottstein said.

Armbrust said the DNA evidence has not implicated another suspect.

The victim was asleep on the couch when someone sneaked into her apartment at 4 a.m. and attacked her. She identified her attacker as the black man across the hall, which led police to Cunningham, Armbrust said.

Faulty eyewitness identification also was a factor in many of the other wrongful conviction cases.

In 2005, five men were cleared thanks to old samples of blood, semen and saliva forensic scientist Mary Jane Burton saved in files from 1973 through 1988. After that, former Gov. Mark Warner ordered all the department’s files - hundreds of thousands of them stacked in storage for decades - reviewed for evidence that could clear others who had been wrongfully convicted.

Since the DNA project got under way in 2006, the department has identified 800 cases that contained biological evidence and someone was convicted. An outside laboratory is testing the samples, and the department reviews the findings.

So far, samples in 68 cases have not matched the person convicted, although that does not mean the person is innocent. Often, more DNA testing and investigative work needs to be done to determine if someone was wrongfully convicted. For example, someone could be convicted of a rape who may not have left behind biological evidence, possibly because all he did was hold down the victim.

Cunningham’s case “underscores the significance of this work,” said Gail Jaspen, chief deputy director of the Virginia Department of Forensic Science.

Armbrust said the goal of the program was to “make sure the system got it right, and when it didn’t get it right that it could be corrected.”

“Even though this is justice delayed for Mr. Cunningham, we’re just happy that it is going to be corrected,” she said.

If Cunningham’s petition for a writ of actual innocence is granted, he would be available for restitution from the state.

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