by Ann Rule
It would take twelve jurors to convict, and only ten to acquit. With flawless memory, Upham went over the story of the lives of Brad and Cheryl. He had done so back in October when the trial began, and now the story was familiar and the jury had a chance to judge for themselves who was telling the truth.
“Cheryl was scared,” Upham said. “She changed her will, the beneficiary of her life insurance.” Gesturing toward Brad, he said, “This is the public Mr. Cunningham. Cheryl knew the private Mr. Cunningham . . . the temper, selfish, no empathy, competitive. He’s willing to act on his propensity to destroy . . . feels very comfortable, very at ease, in hurting other people. ‘The kids are my possessions.’ Cheryl wanted peace. What an enemy he was! Relentless. He has staying power, and he’ll do any thing to get his way.”
What a horror Cheryl had lived through. This jury had never—and would never—hear about what Brad had done to his first three wives, not in a criminal case, but they had come to know Cheryl, and their eyes moved from Upham to Brad as Upham spoke. “The note [Cheryl left] and her conversation with Betty were sufficient to convict,” he said, “but there’s more.” He listed the strongest points of an already strong case: Brad’s threatening and obsessive behavior before Cheryl’s murder, his inconsistent alibis for the time of her death, his flight to evade questioning. “He told Sara on Monday evening,” Upham said, “‘I’d better not answer—I’m digging too many holes, and I’ve got too many holes to fill now.’”
Upham recalled all the people Brad had accused of lying: Karen Aaborg, Jim Ayers, Dr. Sardo, Jess, Jim Karr, Sara. “Finally, he says Cheryl lied to her mother and her brother in her last note. . . . The innocent do not behave like that. The innocent don’t have to lie to that degree. He viciously murdered Cheryl Keeton, and he’s lied. . . . He lured Cheryl Keeton from the safety of her home. Because of her love for those children, she went. Cheryl has told us what the truth is in her conversation with her mother and in her note. ‘Bradly Morris Cunningham murdered me.’”
Brad and Upham had been allotted a total of two hours each for final arguments. Upham could speak once more; Brad could speak only once, and he was clearly nervous. But he had now formulated a timetable for the night of the murder that warred with that established by the Oregon State Police, and Mike Shinn, and Upham and his staff. By adding a few minutes here and shaving a few there, he set out to prove the prosecution wrong.
As he spoke, Brad warmed to his subject and became animated. He insisted that, had he been the killer, there would have been a window of only nine minutes and forty-eight seconds in which he could have driven from the death site back to the Madison Tower, disposed of his bloody clothing, driven through the gate, parked, gone up the elevator, and unlocked the door “with a four-year-old boy in tow.” He asked, “How could you get back to the Mobil station that fast? I don’t run four-minute miles. It would take at least seven minutes to run back. . . .”
No, he insisted, his Sunday evening had not been spent the way Upham said. He could account for every minute of the time between 7:30 and 10:00. “I made popcorn. Michael and I had to leave the room because he couldn’t settle down. I left to get blankets out of the car. We’d race like that. Zip here. Zip there.” He said he had changed into shorts and a T-shirt because that was comfortable “and I felt I looked good. Cheryl was coming over to see my apartment.”
There were no dishes to wash, Brad said, but Michael had helped him wash three or four loads of laundry. “He’d pour in the soap and I’d throw the clothes in the dryer.” Female jurors exchanged glances. Three or four loads of laundry would have taken at least four hours. But Brad was on a roll now and seemed to be enjoying himself. He became magnanimous as he smiled at the jurors. “All you wonderful people had to sit here so long because I didn’t know they’d bring in income tax fraud and bankruptcy. I thought we had a five-to-ten-day case. . . . Ninety-eight percent of the time, I’m happy with court decisions, because it’s fair. I am litigious. . . .”
He talked of items that Cheryl and her brother had hidden from the bankruptcy court. “She was committing bankruptcy fraud by giving away the bronze moose head, my Rolex, the stereo, the Nikon camera . . . and I was about to depose some of her partners. It was the right time to paint me black. . . . Cheryl wasn’t a little wallflower. She was fully apprised of everything we did.”
The transformation that took place in Judge Alexander’s courtroom was fascinating as Brad obviously felt he had the jury in the palm of his hand. He was alternately sarcastic and expansive. “I wanted custody so I killed my wife,” he said almost laughing. “That’s ludicrous. . . . I wasn’t interested in full custody. You had to go for the whole enchilada? I didn’t want it. I was president of a seventeen-million-dollar company. My life was good. All I wanted to show the judge was that Cheryl couldn’t be the primary parent. She had to spend time with Mr. Sloane,* Mr. Miller,* Mr. Thomas,* Mr. Green,* et cetera. She didn’t have time to be the primary parent.”
Brad smiled winningly. “I tend to be too analytical. I tend to be too practical,” he said. “I’m not a day at the beach, sometimes. Today, I stand before you only ten percent of the man I was two or three years ago. I’m more introspective. Cheryl was a good mother. She was going through a cycle. I was too. I was coming out. She got her licks in with her affairs with guys at the office. . . . My life was back on track in September 1986 . . . I was on a career track, my kids were happy, I was making eighty thousand a year, and I was dating Dr. Gordon. . . . I’m a person who has fiscal responsibility. I always have been.”
Suddenly, Brad’s charismatic smile faded as he talked of the pictures of Cheryl after she was dead. “I never saw those pictures before,” he said. “They do that to shock you and upset you. It bothers me. They have no right to take pictures of Cheryl and show them like that. It’s a stunt.” His voice faltered and he began to cry. “Believe me, the police officers have a set too. . . . You have to find me not guilty. You have to look at the facts.”
Brad continued to sob. “I loved Cheryl. I loved her in August of 1986.” His tears caught in his throat. “I loved her in September of 1986.” His voice dropped dramatically. “I can still hear her say, ‘Possession is nine points of the law.’ . . . I’m also a little naive—I always have been—I’m always a little shocked. . . . Cheryl lied in her deposition.”
Spectators were transfixed by his performance. “I don’t have to prove anything,” Brad said softly. “But I tried to. This was not a life experience I want, but I had a duty to my children. This was incredible. I had no idea it would be like this technically. I’m not very proficient and Judge Alexander got mad at me.”
Brad spoke of “depraved indifference” as he stood before the jury, but Judge Alexander called it a day for him. He would have the rest of his two hours in the morning. And when he resumed his final argument, Brad explained that he had only wanted to put Michael on the stand, his alibi witness, but the judge hadn’t allowed it. He said that he had just begun to understand the way the trial should go when it was all over. And once again he went down the list of those he blamed.
“Your time is up,” Judge Alexander interrupted. “Make some concluding remarks.”
“Think about Cheryl’s life,” Brad said earnestly. “Strange stuff. I had no motive. This was Mom. This is Mom. I can tell you on the health of my children, I would never have killed their mom.”
Scott Upham rose to give the prosecution’s final argument. He looked at the jurors whose faces were as impassive as all jurors’ are. Had they believed any of Brad’s histrionics? There was always the danger of finding out that one or two jurors had bought a story that seemed, to Upham, patently false. He never quit until it was really all over. Still a little pale around the gills, he began, “This isn’t about theories. This is about truth. . . .”
Upham commented that real people didn’t have stop watches as they went about their lives. All of Brad’s careful manipulation of times was not enough to change the facts. There was n
o question, he said, that Cheryl was terribly upset when she called her mother shortly after seven on Sunday night. “The month of September had been especially brutal for her—all the incidents added to her fear and apprehension.” Even changing times slightly, Upham said, “the defendant clearly had the opportunity to do what Cheryl said he would do—that’s sufficient to find him guilty of murder.”
Brad had deliberately staged a car wreck, he said. Hadn’t his first question to Jim Ayers been, Did she die in a traffic accident?
No, Ayers had said.
Upham speculated about what Brad must have thought: Damn! Now what do I do?
“To believe he didn’t do this [crime],” Upham said, “Cheryl’s note would have had to be a lie. Her call to Betty would have to be a lie. She’d have to lie to Jim Karr at seven-thirty. She deliberately lied three times?” And then, Upham pointed out, Sara had, of course, lied about her calls to Brad that went unanswered. Marv Troseth’s calls weren’t answered either, so that would make him a liar too. “The last lie was when Jess unlocked the door and Brad said, ‘I’ve been jogging around Sara’s hospital.’ That makes nine lies told by four different people,” Upham said. “Jess, Cheryl, Marv, and Sara. I believe Mr. Cunningham is unworthy of your attention.”
Brad’s furious objection was sustained.
“Brad’s lie,” Upham continued undeterred, “was ‘I’m excited about showing her [Cheryl] my digs—even though I’m destroying her in the divorce, with the kids. and ruining her partners’ reputation.” He listed all the people who had to be wrong for Brad to be right, and the list encompassed almost everyone he had been in contact with—or who had seen him when he hadn’t wanted to be seen—on the night Cheryl died. “Mr. Cunningham is willing to say anything under any circumstances to suit his convenience.
“Cheryl’s note, the phone calls, the time-line witnesses, his behavior after Cheryl’s murder, and his contradictory statements all point to guilt,” Upham said. “The autopsy shows that Cheryl Keeton was savagely murdered. . . . But there was no sexual attack, and it was not robbery. The motive was pure hatred.
“And he left his calling card,” Upham added. “His DNA.”
Upham said that the only person who hated Cheryl was Bradly Morris Cunningham. Brad objected and was overruled. Upham’s final argument was getting to Brad, and he objected constantly until Judge Alexander reminded him, “This is closing argument.”
“Everybody’s out to get Mr. Cunningham,” Upham said wearily. “He consistently and relentlessly lies. It just wears me out to think of them all. I’m not going to try.”
Upham picked up a handful of the letters that Brad had sent to Jess, Michael, and Phillip from jail. While Sara cared for his children, he had clearly tried to destroy their trust in her. As Upham read excerpts, the jurors’ faces and body language reflected shock for the first time in the trial.
“I worry about you. . . . Sara’s destroying our father and son relationship. . . . Her sick black soul . . . controls you with money.”
“Dearest Sons, Things are going really well. . . . Maybe her reign is nearing the end.”
“Dear Sons, She is sweating her butt off. She is praying to her black God, her devil master. I think her condition is becoming critical and terminal. . . .”
Brad slouched in his chair, quietly enraged, his jaw working as Upham wound up his remarks. “He’s a master of trickery and deceit. He has special talents. It’s okay for him to lie, to violate court rules, to destroy her family, to destroy Cheryl’s memory—okay to destroy innocent motorists on Highway 26 to cover his tracks, but he can’t overcome all the witnesses and evidence.
“You do not need to be afraid,” Upham told the jury. “Cheryl Keeton has told us what the truth is. ‘I went to meet Brad Cunningham on September 21, 1986, to get my kids but he tricked me and savagely beat me. . . .’”
65
Brad had changed his mind, probably with Kevin Hunt’s urging, and allowed Judge Alexander to include the criteria for a finding of manslaughter in the first degree as well as for murder as he read the instructions to the jury. He was, perhaps, not as confident as he had been before Upham’s final argument. He slouched deeper in his chair and leaned to one side with his jaw resting on splayed fingers. Listening had always been difficult for him. He seemed to have felt his words were convincing, but now he appeared apprehensive.
The two alternate jurors, not needed, were dismissed and the jurors filed out to deliberate. It was so close to the noon break that no one expected they would begin to discuss the case until early afternoon. The “regulars” in the courtroom walked out into the chilly air and headed toward the Copper Stone Restaurant. For an hour or two, the tension would be gone. Too early to worry about a verdict. Seated at tables were Betty and Marv Troseth, Susan and Dave Keegan, Bob McNannay, Jack Kincaid, Debi and Billy Bowen, Kim and Bill Roberts, Mike Shinn, Katannah King, Donna Anders, and myself. Sara Gordon was too nervous to be present—and, besides, she wanted to be with her sons when the verdict came in.
Nobody ate much and conversation was determinedly cheerful, while Christmas songs played on the Muzak and Hillsboro shoppers passed by outside, intent on finding last-minute gifts. Most of the trial-goers had yet to buy a first present for anyone. It was as if their lives had been suspended until they knew if Brad would be convicted or walk free. If he did walk free, there would be no Christmas for Sara. The first thing Brad would do was come and take his sons away from her. She had no doubt about that.
There wasn’t much happening on the fourth floor of the Washington County Courthouse when we all returned. A few days before, there had been two murder trials—Brad Cunningham’s and Cesar Barone’s. Now Barone, a suspected serial killer, had been convicted of the murder of nurse-midwife Martha Browning Bryant, and Brad waited in his jail suite for the verdict in his case. The only courtroom that wasn’t “dark” that long Friday afternoon handled civil cases, and the complainants and witnesses came and went as a score or more of people waited for the Cunningham jury to return.
Experienced court watchers say a quick verdict is a guilty verdict; the longer the time that passes, the more likely an acquittal. The afternoon dragged on. When the clock over the public phone read two, and then three, we all began to grow nervous. How long did it take to poll twelve jurors? What were they doing in there?
The most nervous paced the circular route past the elevators, the wall hanging, the civil courtroom, the waiting room, the phones, the water fountain, and around again. Of them all, Jack Kincaid was the steadiest pacer—stopping only long enough to call Sara every hour and, with great acting ability, reassure her that it looked great for a conviction.
Did it? Nobody knew. To pass the time, everyone put up a dollar and guessed an exact time the jury would come back. The “pot” held more than twenty dollars. Cheryl’s sister Susan, happily pregnant with her first child, was designated the most reliable person to hold the money. At four o’clock, the jury had been out for five hours. Allowing even an hour and a half for lunch, that still left them more than three hours to deliberate.
Nerves began to fray. Kincaid was joined on his circular pacing route by a half dozen others, and stern court guards stepped out of the civil courtroom and shushed them. The word was that the jury would not stay after six to deliberate, and the thought of having to wait overnight was agonizing. Cheryl’s California relatives had small children who were looking forward to Christmas and they would have to leave. But somehow everyone felt that it was essential to wait, that being there in the hallway was the last thing they could do for Cheryl, even knowing that it couldn’t really matter. The jury was locked in its own cocoon behind so many doors.
It didn’t look good. It was almost five, and all the pool guessers had long since passed the time they had picked—all but Marv Troseth.
And then Jerry Wells, the courtroom deputy who had always been full of jokes and irreverent remarks, walked back to where Cheryl’s family and a few reporters waited. For onc
e, he was entirely serious and he looked worried. “Whenever the jury comes back,” he said slowly, “I want you all to know that there are to be no demonstrations, no remarks, no noise. I’ll have to ask you to leave the courtroom if you can’t live by those rules.”
“Is the jury coming back?” somebody asked.
“I didn’t say that,” Wells said carefully. “When it does, I’m telling you that I mean that I don’t care how much I like you, anybody who acts up is out.” He looked straight at Billy Bowen, Cheryl’s tall, husky brother-in-law, as he spoke. Billy grew emotional whenever he thought that Cheryl had had no one to help her. Now he looked back at Jerry and nodded slightly. He wouldn’t cause any trouble.
Something was happening. The elevator doors opened and Kevin Hunt and Tim Lyons stepped out and hurried into Suzie Dudy’s office. Word was that Scott Upham and Jim Carr were on their way up the back stairs from the D.A.’s office.
The short corridor outside Judge Alexander’s courtroom where spectators had lined up every day for two months was suddenly full of people, some leaning against the wall, others sitting on the floor. Waiting. It was 5:15 P.M. on Thursday, December 22, 1994, and everyone sensed there would be no overnight wait.
At 5:24, a bell began to ding in Suzie’s office. The jury was back. The jury had a verdict.
At 5:40, Cheryl’s family sat together in the back row of the courtroom and held hands as they fought to contain their emotions. Brad was sitting at the defense table with Hunt and Lyons, Upham at his table. Judge Alexander glanced at the gallery and repeated the warning that Jerry Wells had given. There were to be no outbursts when the verdict was read. Either way it went, it would be difficult to keep silent after eight years of waiting.
The jury filed in silently and took their seats.