In 1981, Calvin Wayne Cunningham was sentenced to 20 years in prison for a crime he didn’t commit based on eyewitness misidentification. Nearly three decades later, and after seven years of wrongful imprisonment, DNA testing excluded him as the perpetrator. 

The Crime and the Investigation

On May 24, 1979, the superintendent of an apartment complex in Newport News, Virginia, was asleep on her couch when a man entered her apartment around 4 a.m. and raped her. Shortly thereafter she identified her attacker as the black man who lived across the hall, which led police to Cunningham. 

The Trial

The state’s case rested on the identification of Cunningham. The victim claimed that she recognized Cunningham as the man who raped her because they lived in the same apartment complex and he was the only black man who lived in the building. However, several witnesses testified that at the time of the incident there were other black males living in the apartment complex. Cunningham himself had a roommate who fit the victim’s description of the attacker as between 5’10” tall and 6’ tall, a light beard, small afro and a medium build. 

The severe limitations of the victim’s visibility throughout the attack were also ignored throughout the trial. Prior to the rape, the attacker had unplugged all of the lights in the victim’s apartment.  The only source of illumination during the attack was a street light outside. 

At the time, forensic examination of the rape kit could not prove Cunningham as the perpetrator, but it was also unable to exclude him. The only other forensic evidence was a chest hair found on the victim’s body, which the forensic analyst was willing to characterize as “similar” but not “consistent” with Cunningham’s. No fingerprints or any other physical evidence connected Cunningham to the victim’s apartment. 

On June 19, 1981, Cunningham was convicted of rape and burglary charges. On September 4, 1981, he was sentenced to 15 years for rape and 5 for burglary. 

Post-Conviction

Cunningham began requesting additional forensic testing shortly after his conviction, as early as 1982 before DNA testing existed. His opportunity for DNA testing would not come until nearly 30 years after his original conviction, though he would be paroled after seven years.

In 2005, after DNA testing on old biological samples exonerated five men in Virginia, former Governor Mark Warner ordered a review to examine evidence from all convictions between 1973 and 1988. 

By February 2010, Cunningham was informed that DNA tests of the victim’s nightgown and vaginal swabs excluded him as a possible contributor, revealing an unknown male profile. The Mid-Atlantic Innocence Project and attorneys from Wilmer Cutler Pickering Hale and Dorr filed a petition for a Writ of Actual Innocence on Cunningham’s behalf. A year later, the Virginia Supreme Court granted the writ. 

Prior to the Writ, Cunningham was imprisoned due to a four-year sentence on unrelated non-violent charges and is scheduled to be released in November 2012.