DNA tests have freed 188 prisoners

Since 1989, 188 prisoners have been freed after DNA tests proved their innocence, according to the Innocence Project in New York.

Dewayne Scott Cunningham, convicted in 1996 of raping a woman at a Flomaton park, said all of those people being exonerated gives him hope that he will become the 189th and win release from his life sentence.

Two of the 188 prisoners who have been freed came from Alabama. Prosecutors in that case dismissed charges and released brothers Ronnie Mahan and Dale Mahan in 1998, after they had served more than 12 years in prison for a 1983 rape and kidnapping. Cunningham, who has served 11 years so far, said he knew one of the Mahans -- he can't remember which one -- when he was incarcerated with him at Bullock Correctional Facility in Union Springs.

A young woman in the Mahan case was abducted from a shopping mall and taken to a wooded area, where she was forced to use drugs and was raped several times, according to the Innocence Project in New York City.

The victim later identified the brothers from a photo lineup.

If Cunningham is to win his freedom, the 37-year-old native Californian will have to do so by way of federal court, because Alabama is one of nine states that did not accept federal financial incentives to pass a law allowing for automatic post-conviction DNA tests. His civil rights lawsuit is pending in federal court in Mobile.

Officials from the Innocence Project, which is affiliated with Yeshiva University's Benjamin Cardozo Law School, said they recognize that victims and states have an interest in closure. But they said that should not trump the ability of wrongfully convicted people to prove their innocence.

"I think if there is biological evidence that can be tested, there is the potential to provide a real answer," said Stephen Saloom, the organization's policy director. "If the evidence exists and you refuse to test it, there's a lingering question about that person's innocence."

Saloom said the victim's mistaken identification in the Mahan case is hardly an exception. Eyewitness misidentification is responsible for about three-fourths of wrongful convictions that DNA testing has overturned, he said.

"People's memories aren't as strong as was once assumed," he said.

A law review article highlighting a Pennsylvania rape case makes the same point. The evidence in that case appeared even stronger than the evidence that convicted Cunningham.

According to the law review article by a pair of University of Pennsylvania professors, Bruce Godschalk confessed to a pair of 1986 rapes in Montgomery County, a wealthy Philadelphia suburb. Police reported that the suspect provided details that only investigators, the victim and the perpetrator could know.

In addition, one of the victims identified Godschalk as her rapist, semen recovered from one of the attacks came from the same blood type as the defendant and a fellow jail inmate testified that the defendant admitted the crimes while awaiting trial.

Although Godschalk recanted his confession and claimed police provided him with the details, a jury found him guilty and a judge sentenced him in 1987 to 10 to 20 years in prison.

Like Alabama now, Pennsylvania at the time had no laws guaranteeing convicts a right to post-conviction DNA testing. And like the Flomaton rape, authorities resisted conducting the test on the grounds that the evidence against Godschalk was overwhelming.

After a state court judge denied a request for a DNA test, Godschalk in 2000 filed a civil rights lawsuit in federal court -- the same type of suit Cunningham has filed.

During litigation, the state and Godschalk's attorneys worked out an agreement to run the DNA tests. Those tests indicated that one man committed both rapes but that he certainly was not Godschalk. Authorities dismissed the charges and freed Godschalk in February 2002, after he had served 15 years in prison.