On May 24, 1979, the superintendent of an apartment complex in Newport News, Virginia, was asleep on her couch when someone entered her apartment around 4 a.m. and raped her.
When the victim said her attacker was the man who lived across the hall, 26-year-old Calvin Wayne Cunningham was arrested and charged with the attack.
At the time, forensic examination of the rape kit could not prove Cunningham was the attacker, 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 hair. The analyst did not present qualifying information about the limitations of hair microscopy. No fingerprints or any other physical evidence connected Cunningham to the victim’s apartment.
Based on the woman’s identification, Cunningham was convicted of rape and burglary charges on June 19, 1981. He was sentenced to 5 years in prison on the burglary charge and 20 years in prison on the rape charge.
After spending more than seven years in prison, Cunningham was released on parole.
In February, 2010, DNA testing on the biological evidence in Cunningham’s case eliminated him as the assailant. Cunningham, who was on the sex offender registry in Virginia, contacted the Mid-Atlantic Innocence Project, which filed a request for a Writ of Actual Innocence.
On April 12, 2011, the Virginia Supreme Court granted the writ. Cunningham was back in prison serving a four-year prison term for theft and other non-violent charges. A bill was introduced in the Legislature to provide $232,000 in compensation, but it was withdrawn.
In 2018, Roy Watford III became the 12th person to be exonerated by DNA testing of evidence in Burton’s files. In 2019, Winston Scott became the 13th person exonerated by DNA evidence retained in Burton’s files.
Cunningham, according to an interview with the Richmond Times-Dispatch, could not find a job after his release and he developed a drug problem. That led to him going back to prison for other crimes in 1999, 2001, 2005 and 2009. On May 3, 2021, he was granted a compassionate release because he was suffering from cancer. Cunningham died seven days later, on May 10.
– Maurice Possley
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