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Wednesday, January 31, 2007

Judge denies prisoner's DNA request

This article appeared in Alabama's Mobile Press-Register on January 5, 2007:

Judge denies prisoner's DNA request

By Brendan Kirby
Staff Reporter

A federal judge in Mobile has ruled that Dewayne Scott Cunningham, convicted of rape 10 years ago, may not have access to evidence that Cunningham insists could prove him innocent through DNA testing.

U.S. District Judge Kristi DuBose decided against Cunningham on each of the half-dozen legal arguments made by his lawyers from the University of Wisconsin Innocence Project.

"I'm obviously disappointed by the decision," attorney Keith Findley said. "It's something we need to pursue further because I think Mr. Cunningham deserves and has a right to have access to DNA testing."

Assistant Alabama Attorney General Clay Crenshaw praised Dubose's decision.

"It looks like the judge wrote a real extensive order that addressed all the plaintiff's arguments," he said.

But she quoted from an opinion written by Chief Judge J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals on a DNA case: "Our system however does not allow any person to press a claim of innocence at any time, at any place, and in any manner."

Wilkinson wrote in that case in 2002 of his hope that Congress would act on behalf of inmates who believe DNA testing could prove they were wrongfully convicted.

The court's decision helped prompt passage of the Innocence Protection Act of 2004, which established procedures for federal inmates requesting DNA tests and provided grants to help states pay for post-conviction DNA testing.

Although the Alabama attorney general's office opposed Cunningham's request, Crenshaw said the department does not always oppose such post-conviction DNA testing. He said officials determine two facts: Was the DNA testing available at the time the defendant was convicted, and would the testing be conclusive?

For example, Crenshaw said, the office supported testing for Olin Grimsley, who was convicted of a 1990 murder in Houston County largely on the basis of a cigarette that placed him at the scene of the crime.

DNA tests were conducted on the cigarette, which confirmed that Grimsley had smoked it.
Cunningham now must decide between two unlikely routes -- asking the judge to reconsider her decision or appealing to the 11th U.S. Circuit Court of Appeals. Findley said his client will consider both.

"We'll look at all of our options," he said.

Cunningham, 37, has been in prison since 1996, when a judge sentenced him for the 1995 rape of a Flomaton woman.

The Escambia County jury took a couple of hours to find Cunningham guilty of the crime.

The victim, who had just finished jogging around a track in Flomaton's Hurricane Park on Aug. 20, 1995, identified Cunningham as her attacker about 15 minutes later at the police station. She also identified him from the witness stand.

Based on Cunningham's criminal record, the judge sentenced him as a habitual offender to life in prison. Though he remains eligible for parole, Cunningham has said he holds little hope that he will win his freedom that way.

Cunningham, a homeless man with a history of mental problems, said in an interview at Fountain Correctional Center near Atmore last month that he spent his time in those days sneaking onto freight trains across the country.

He insisted he was in the wrong place at the wrong time when a Flomaton police officer approached him.

Police searching the park found a condom wrapper of the same brand Cunningham had in his wallet. A rape examination of the woman also turned up several strands of foreign hair in her pubic area.

Authorities did not conduct DNA tests, which at the time were less sophisticated than they are now.

Cunningham, who challenged inconsistencies between the victim's description of her attacker and his actual appearance, asked for the condom wrapper and the hair samples so that DNA tests could be run.

When state and local officials refused, he filed a federal suit. It was his only option, since Alabama is one of a handful of states with no law providing for post-conviction DNA testing.
The lawsuit claimed that denying Cunningham's request violated his civil and constitutional rights. He made a number of claims that DuBose rejected one by one.

For instance, he claimed that the state impeded his ability to prove his innocence based on newly discovered evidence.

"There is not a viable newly discovered evidence based claim because there is no newly discovered evidence. There is only a hope of newly discovered evidence, which is insufficient to establish actual injury," DuBose wrote in her 26-page order.

DuBose noted that Cunningham's lawyers had argued that they face a Catch-22 because he cannot demonstrate that he has newly discovered evidence until he is given a chance to run the tests. "This is true, but that fact does not provide a basis for this court to ignore the actual injury requirement of a denial of access to court claim," DuBose wrote.

The judge expressed some sympathy for Cunningham's predicament.

"The plaintiff has made numerous meritorious policy arguments in support of his position for this court to require the state to allow him access to the evidence for DNA testing," she wrote.

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