Press Register

A convicted rapist fights for DNA test
Sunday, December 24, 2006

By BRENDAN KIRBY, Staff Reporter

ATMORE, AL -- On Monday, Dewayne Scott Cunningham will spend his 11th Christmas Day in prison, counting the days of a life sentence for a rape he insists he did not commit.

The evidence that might confirm his claim -- a condom wrapper recovered from the Flomaton park where the rape occurred and a pubic hair taken from the victim's body -- remains locked in a vault in the Escambia County circuit clerk's office.
Alabama is one of nine states that has no law allowing for DNA testing after a conviction, and authorities have resisted Cunningham's requests for access to the evidence. So his last hope for exoneration rests in a federal lawsuit filed in Mobile by lawyers from the University of Wisconsin Law School's Innocence Project.

Looking at least a decade older than his 37 years, Cunningham spoke wistfully last week about his desire to return to his native California.

"I want to see it before I pass away. I want to be able to visit my momma's grave," said Cunningham, who was handcuffed and clad in a white jail uniform during an hourlong interview at Fountain/J.O. Davis Correctional Facility in Atmore. "I want to be able to lay flowers at her grave on her birthday and Valentine's Day."

Cunningham's civil rights lawsuit remains pending before U.S. District Judge Kristi DuBose, who gave lawyers until last week to file additional written arguments. Alabama officials argue that justice demands finality -- especially regarding allegations that have been decided by a jury and reviewed by the state Court of Criminal Appeals.

Re-opening the case to conduct further forensic evaluation would be pointless, Assistant Attorney General Clay Crenshaw said in a recent interview.

"We think there's absolutely no chance that the test results would show that he is innocent. ... The evidence was overwhelming," he said.

Crenshaw also raised doubt about whether a DNA test could be conclusive. "Who knows who's handled that wrapper?" he said.

An attorney for Flomaton and its police chief, also named as defendants in the lawsuit, argued that all of the other evidence proves Cunningham's guilt.

"DNA testing cannot overcome the overwhelming nature of the evidence and would not establish Cunningham's innocence, even assuming favorable test results," lawyer Daniel White stated in written arguments to the judge.

Keith Findley, one of Cunningham's lawyers and a professor at the University of Wisconsin Law School, said one need look no further than the long list of prisoners throughout the country who have been proven innocent by DNA tests. Many of them had been in prison for years before they were freed, and some had even been on death row, he added.

"There's been (188) people in the country now who have been exonerated through DNA testing. Every one of them, prosecutors thought the evidence was overwhelming," he said. "That's why they were convicted beyond a reasonable doubt. You can't prejudge a case in that way."

Not only could a DNA test prove his client did not commit the rape, he said, it also could lead investigators to the man who did. The rapist's DNA might already be in a national database, he said.

Fast arrest
The rape in this Escambia County town of 1,560 people occurred on Aug. 20, 1995. According to testimony at Cunningham's trial and court records, here is what happened:

The victim went jogging on a track in Hurricane Park, a complex of playground equipment, ball fields, tennis courts and other athletic facilities situated near a rail line that cuts through town. A man grabbed the woman from behind as she was heading toward her car after finishing her workout. The perpetrator held a knife to her stomach and ordered her into a wooded area.

The woman testified at the trial in September 1996 that she made several attempts to escape, prompting her assailant to threaten her life. At that point, according to her testimony, he jerked down her shorts, put on a condom and held her arms down while raping her.

When her attacker moved to retrieve his knife after the attack, the woman managed to run to her car and drive to the police station.

From there, the investigation moved quickly. After the victim provided a description of the attacker, Flomaton Officer Jeffrey Joyner drove to the area and saw Cunningham, a shirtless man carrying a backpack along U.S. 31 adjacent to the park.

Cunningham denied having any confrontation in the park and then waited at Joyner's request while the officer searched through the park. Finding no one else, he returned to Cunningham, told the hobo that he fit the description of an alleged rapist and took him into custody. Police showed Cunningham to the woman, who identified him as her attacker. To police and prosecutors, it was an open-and-shut case, and a jury convicted Cunningham after a couple of hours of deliberation.

But to Cunningham and his lawyers, investigators glossed over major discrepancies. For starters, they say, the description Joyner said the victim gave differed from her written statement. And both contradict Cunningham's actual appearance.

Joyner testified that the woman told her the rapist was tall. However, the victim's written statement to police described the assailant as "not tall," only a couple of inches taller than her own 5-foot-4 frame. Cunningham stands 6 feet tall.

The woman also estimated his age at between 30 and 40 years old; Cunningham was 26 at the time.

Although the victim told investigators that the rapist was not wearing a shirt, she failed to mention any scars. Cunningham had a scar running from his left shoulder to his armpit. He said that mark came from surgery related to Ehlers-Danlos syndrome, a rare defect in the connective tissue that provides support to the skin, muscles, ligaments and other body parts. Demonstrating the instability of his joints as a result of the malady, he pulled his fingers completely back until they touched his wrist.

While the victim said the attacker had yellow teeth, she did not say he was missing any of them. Cunningham was missing one upper tooth and had another one that was broken.

Crenshaw dismissed the discrepancies as insignificant. He said traumatized victims often get details wrong in their descriptions.

"I don't know if that's so unusual," he said. "For the most part, she's running away from him."
Crenshaw called the victim's overall description "spot on," and noted that the woman had no problem recognizing Cunningham when she saw him about 20 minutes later at the Flomaton Police Department.

But that identification is another source of doubt for Cunningham's team. Rather than show her an array of photographs or place Cunningham in a lineup, officers simply let the victim look at Cunningham, who was handcuffed in the back of a squad car.

Such "show-up" identifications are inherently unreliable, they contend, because it suggests to witnesses that the suspect is guilty. Numerous courts have condemned the practice, including the Alabama Supreme Court in 2001. In that decision, the high court ruled that show-up identifications were not automatically unconstitutional but should be used sparingly.
Findley and others said eyewitness testimony is not nearly as accurate as many might assume.

"There's been a significant amount of research on this," Findley said. "People are just not very good at observing, recording and remembering physical characteristics.

"There's a common misconception that human memory works just like a video camera," he added. "Unlike a video camera, we have expectations. We tend to see what we expect to see, and the mind fills in the blanks."

Crenshaw said he realizes that defense attorneys often attack the reliability of eyewitness identifications, but he expressed skepticism over that position -- especially in this case where the victim fingered Cunningham the same day she was raped.

Crenshaw also noted that the assault occurred on a Sunday morning. Cunningham was a drifter who came to the park by way of a CSX freight train, he said.

"On a Sunday morning in Flomaton, Ala., they don't have five hobos to present in a lineup," he said.

State lawyers also stress in court papers the strength of the circumstantial evidence. The woman, for instance, told police her attacker wore black pants. When Joyner encountered Cunningham, the suspect had on green sweats, but investigator later found black pants in his backpack.

Cunningham insists he did not change clothes that morning, and a judge refused to allow the contents of the backpack to be introduced into evidence.

Then there were the condoms police found in Cunningham's wallet after they arrested him. They are of the brand and type as the foil condom wrapper they found in the park.

Cunningham said he always carried condoms because in those days living on the streets, he earned money from male prostitution.

Despite the circumstantial evidence, there was nothing as rock-solid as DNA to link Cunningham to the crime. At the time, according to authorities, DNA science was not nearly as sophisticated as it is now. A microscopic comparison of hair samples from Cunningham to a pubic hair and four hair fragments recovered during the medical examination of the victim proved inconclusive.

Prosecutors offered no other physical evidence. No fingerprints were found on the condom wrapper, and no seminal fluids were found.

Battling demons
By all accounts, Cunningham had far from an easy upbringing. Abandoned by his father, he grew up with his single mother in Whittier, Calif., boyhood home of former President Nixon.

Court records lay out Cunningham's long history of mental illness, beginning as young as age 10. He spent most of his teen years in and out of crisis centers and mental health facilities, and attempted suicide on at least three occasions, according to those records.

A psychological history contained in the criminal court file states that Cunningham attacked a music therapist intern at Camarillo State Hospital in California in 1986, fondling her breast before staffers broke it up. Cunningham later told psychologists that he could not remember the incident.

Cunningham suffered through periods in which he heard voices and behaved irrationally, according to the psychological report.

Cunningham told a psychologist prior to his rape trial that his mother had sent him to live with a friend because she could not handle him. During the interview at Fountain last week, he said the woman cared for him while his mother waited tables and earned her law degree.

He said he still trades letters with the woman, his only contact with anyone in the outside world.
For a man who has spent the last 11 years behind prison walls after four years of a hobo existence, he exhibited a surprising curiosity about world events. He said he would read USA Today while living on the streets and now watches television only when the news is on.

Cunningham said he was particularly shaken by the terrorist attacks on Sept. 11, 2001, which coincidentally occurred on the fifth anniversary of his rape conviction.

Cunningham acknowledged his mental health problems, though. A slight man with a pointy head, ears that appear too big for his face and stringy, brown hair, Cunningham appeared lucid and had no obvious problem communicating last week.

He said it took some time to diagnose and medicate him properly. He insisted that he was on his medication on the day of the rape, although one of the medical reports in the court file indicates that he told authorities he was not taking his medicine at the time.

Is it possible something might have happened that he just does not remember? He strenuously insisted that is not possible.

"I remember that day clearly. I remember from the time I got off the freight train," he said. "I remember walking down the road. I don't have lapses of time."

At the time, Cunningham said, he had spent about four years as a vagabond. After his mother died, he added, he gambled away his $250,000 inheritance in two months in Las Vegas casinos.

"After that, somebody showed me how to ride trains, so that's what I stuck with," he said.
Cunningham said he would sneak aboard freight trains, traveling the country. On that August day in 1995, he was on his way to Miami, where he planned to stay through the following winter.
He had made the journey before through Flomaton, where he would switch trains. Unlike his previous trips when he was coming from Mobile, however, he said he rode to town from Birmingham on that day. As a result, he said, he did not get off at the rail yard and had to leap off when the train already had passed it.

He said that's why he was on U.S. 31, walking toward the rail yard to catch his next train, when Officer Joyner approached him. He said he was not alarmed.

"I'm so used to dealing with police, living on the street," he said. "I hadn't done anything. I had nothing to fear or run from."
Cunningham said prosecutors offered him two plea bargains -- one that included a sentencing recommendation of 45 years and another in which he would have spent 35 years in prison. He said it was an easy decision to turn them down.

"I wouldn't have copped out to 10, to be honest with you," he said. "My momma always told me, 'If you ain't done nothing and you have nothing to hide, don't cop out.'"

Cunningham's lawyer tried to poke holes in the prosecution's case. A defense witness testified that she went to police six days after the attack and told investigators that she saw a man near the park on the morning of the rape. Her description -- a transient in his later 30s with sandy-blond hair and small frame -- more closely matched the victim's written statement.

The jury came back with a guilty verdict. The Rev. Clyde Bruley, who served as foreman of the panel, said in an interview last week that the jurors did not agonize over the decision. He and 10 others were convinced of Cunningham's guilt from the start of deliberations, he said. The lone holdout had had a bad experience with the police, he added, but came around after a couple of hours.

Bruley, a retired pastor who lives in Atmore, said the victim's testimony coupled with the circumstantial evidence, was more than enough.

"It seemed to be a pretty open-and-shut case," he said. "She described the rape. She identified him. She was sure."

Hamstrung by state law
Cunningham had three prior felony convictions -- arson, possession for sale of cocaine and burglary of a business -- and the judge sentenced him as a habitual offender to life in prison. He subsequently lost all of his appeals.

Now, Cunningham can only hope an examination of DNA -- his unique genetic code -- will demonstrate that he could not have committed the crime.

It would be easier if Alabama had a law granting prisoners the right to have a DNA test after their convictions. Inmates who have sought back-door access through the federal courts have seen mixed results. Those cases often have turned on unique issues in individual cases, said Findley, his lawyer.

"This is an emerging area of the law that is being litigated in states throughout the country," Findley said. "The results have been (that) some courts have awarded it and others have not. And it gets very technical."

Former U.S. Attorney General Janet Reno committed her Justice Department to the "pursuit of the truth over the invocations of appellate time bars."

Congress passed the Justice for All Act in 2004 granting federal inmates post-conviction DNA testing and providing financial incentives for the states to do so, according to the Innocence Project in New York, a nonprofit group co-founded by O.J. Simpson attorney Barry Scheck.
Alabama and eight other states have not granted that right.

Even when successful, lawsuits are not the ideal method of exonerating the wrongfully accused, according to activists.

"The problem is, it requires a lot more litigation," said Stephen Saloom, the policy director of the Innocence Project in New York. "It requires more involvement. It requires more cost. It requires more resources."

Cunningham said he was aware of DNA from coverage of Simpson's murder trial. After going to prison, Cunningham said he wrote dozens of organizations and law schools seeking help.
The University of Wisconsin Law School's Innocence Project, which is not affiliated with the New York group, took the case.
"DNA's going to speak for itself. If I had done it, I wouldn't be seeking DNA," Cunningham said. "They believe I'm innocent. I know I'm innocent."

Daily life at Fountain is filled with monotony, Cunningham said. For the first few years, he said, he had sex with inmates in exchange for cigarettes and food from the prison store. In recent years, he said, he has had a "husband" who has provided those luxuries.

Cunningham said the meals are horrible and the conditions cramped. He lives in a dormitory-style room with 190 beds -- bunks on both walls and two rows in the middle. Other than a job sweeping and mopping the floors at night, he said he is pretty much on his own most of the day.
He said he has been denied parole once and does not expect to win freedom that way. He said he worries about adjusting to life in the outside world if he is freed after so many years in prison. If his incarceration lasts long enough, he said, he figures it probably would be best if he never got out.

But Cunningham said he would continue to press for the DNA tests.

"It's not something anyone should have tied to his name," he said. "I want my name cleared; that's for sure."

And what if DNA testing were to prove that Cunningham did, in fact, rape the woman? Saloom said that has happened in about a third of the post-conviction DNA tests that have been conducted.

"There's a value to that, too," Saloom said. "That's finality."

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