by Ann Rule
“I object!” Brad shouted.
“Overruled,” Judge Alexander said.
Upham continued the dreadful recital of the last forty-eight hours of Cheryl’s life until he reached Sunday night, shortly after 7 P.M. “Cheryl calls Betty. Mr. Cunningham has just called—he has gas problems. . . . He hung up on her.
“Seven-thirty P.M. Jim Karr called . . .
“Seven fifty-nine P.M. Cheryl calls Betty. She’s upset . . . she’s stern. ‘Mother, write this down.’ Mr. Cunningham had just called. ‘He told me he’s at the Mobil station by the IGA.’ That station is seven-tenths of a mile from her house. She said to her mother, ‘I know that station’s closed.’
“Her mother said, ‘Don’t go—’
“She said, ‘I have to.’”
As often as most of those in the courtroom had heard this awful progression, it never failed to raise gooseflesh. And there was always the fervent wish that somehow the ending might be rewritten. . . .
When Upham began to describe the murder, the muscles in Brad’s neck and jaw tightened. “She was beaten to a pulp,” Upham said, moving to the jury box to show the pictures of the face and head of the once beautiful victim.
“I object,” Brad shouted.
“Overruled.”
“I think the word to describe that is overkill.” Upham said, “done by someone who is extremely angry and bent on destruction—”
“I object!”
“Overruled.”
Upham moved on to complete his description of the murder and to state his belief that there was only one man who could have committed it. Brad was seething, apparently forgetting that Upham had told the jury that this was not evidence; it was the State’s theory.
Then Upham began to talk of the physical evidence he would present. “In 1992 the Oregon State crime lab became ‘DNA capable,’” he said. “In 1993 hairs found on Cheryl Keeton’s arm were submitted for DNA analysis. They were Cheryl’s—but a contaminant on the hair was cellular material that was consistent with that of Bradly Morris Cunningham. . . . He had motive, opportunity, and the timetable was right,” Upham continued. “She was too tough. She wasn’t going to give up . . . so the defendant destroyed her physically.”
It was 2:45 P.M. and Upham had spoken for only an hour. But his whole case had been laid out for the jury. As the gallery filed out for the afternoon break, no one said a word.
When the trial resumed, Brad was raring to go. He would now have his first chance to plead his case. He was confident that he could explain everything to the jury’s satisfaction. Dressed in his neat dark suit, crisp white shirt, and wine-colored tie, he looked like the bank executive he once was—or like an attorney. With whispered instructions from Kevin Hunt, he walked to the lectern before the jury entered so that they would not know about the restraining brace on his leg.
It was 3:09 when Brad began to talk. His technique was to attack, not to defend, and there was no logical order to his remarks. “Right before you left, the DNA evidence was mentioned,” he said. “We just got it five minutes before. It has nothing to do with me. It won’t be borne out. He ambushed us with tainted evidence. . . . In 1986, I was not charged. I had alibi witnesses. . . . My children, six, four, and two, told the police I was home all night with them. In 1994 they are fourteen, twelve, and ten, and they don’t remember. In 1986 my children told the police to their satisfaction—and now it’s been too long. That’s very, very important to remember.”
Brad’s opening statement had much to do with the conspiracy he believed existed to keep his children from him and to tape his calls. He said that of the fifty thousand relevant documents he needed, only sixteen thousand of them had been paginated. He then gave his own version of the last day of Cheryl’s life, telling of his strong suspicions that Cheryl was “with someone” when he called her Sunday night. “She was coming for them. I fixed popcorn and I put in a movie. Michael and I went down to pick up their little packs. . . . Lilya saw us. Jess was watching The Sword in the Stone. . . .
“Cheryl had a clump of hair in her hand, a cord with a key wrapped around her wrist—not my hair—not my key.”
Brad then launched into his prime defense—his belief that Detective Jerry Finch, who had been dead for six years, was having an affair with Cheryl. “The Collins Towing driver said Jerry Finch had a date with Cheryl that night. Why didn’t they check Finch’s house for blood?”
Brad told the jury how he had suffered. “I lost my job. I was kicked out of my apartment. Harassed by the news media. I couldn’t pay my rent.” He then moved quickly to Cheryl’s seamy childhood. “Cheryl had had a very, very tough childhood,” he said. “She had to baby-sit all her younger siblings. She was sexually molested by her mother’s men—they were lower middle class—” In the back row, Betty Troseth’s mouth dropped open in shocked, silent protest. Brad had set out to throw mud not only on Cheryl, but on her whole family.
In another abrupt change of direction, Brad began listing his many accomplishments in real estate and construction. He said he had made millions before he was thirty-five. “We went to Houston and built seven office buildings and a warehouse.” But those responsible for completing the project had ruined his and Cheryl’s dreams, he said. He then veered off the subject of Cheryl’s murder into an extremely complicated explanation of his financial picture. “In 1983, we had fourteen million dollars in assets and six million in debts. It was a tough time. We were lepers in the financial community. I was earning an income from the warehouse and two office buildings. It was hard for Cheryl to work because she faced the lawyers who were suing us. . . . We eventually lost everything.”
Standing at the lectern, facing the jury, Brad resumed his attack on Cheryl. “Our life was difficult . . . Cheryl dealt with problems differently. . . . She went to the Jubitz Truck Stop and picked up men. She went to nude beaches. She slept with attorneys. She gave me sexually transmitted diseases.” He dropped his head and half smiled, saying that he wasn’t very mad about that. He clearly wanted to be perceived as the ultimately forgiving husband. In the next breath, however, he continued to attack Cheryl’s morals, her family’s morals, and the police who had investigated her murder.
He offered up many suspects for the jurors to consider. Jerry Finch, of course; a “persistent” older man who was “bugging” Cheryl; her many other lovers. He even suggested that her brother, Jim Karr, was not above suspicion. In the days ahead, he promised to reveal more possible killers.
There was missing evidence, Brad suggested, and he listed items he would request continually throughout his trial: a grocery receipt for seventy-seven dollars’ worth of groceries allegedly purchased by Cheryl at the IGA on Sunday, September 21, 1986; the groceries; a garage door control; fingernail scrapings from Cheryl; phone records; exterior photos of the Toyota van; a bedroll allegedly given to Jerry Finch; a “gold ring” found on Cheryl’s belt.
The long Monday finally ended, but Brad was not yet finished with his opening statement. There was more lost evidence to be considered, lost years, the secret lifestyle he insisted that Cheryl lived—with cocaine, illicit lovers, nude beaches, intrigue. All of his innuendos were completely alien to everyone who knew Cheryl. And when they walked out into the autumn afternoon, the trees around the courthouse were aflame with color and it felt good to leave Brad’s ugly accusations behind.
59
Judge Alexander warned Brad again the next morning that there were very few attorneys in Oregon qualified to defend a murder case. “You are way, way off,” he admonished. “You have to follow the same rules they do. If you say something in the opening and then can’t prove it, you’re opening yourself up for trouble.” He explained once again that Brad was not to try his case during his opening statement; he was only supposed to be outlining what the jurors could expect to hear and see.
Brad stood in place at the lectern as the jury filed in the next morning. He was calm and gracious, speaking often of his financial affairs, but, jarringly,
the emotion evoked as he recalled lost business deals seemed greater than when he spoke of his lost wife. In March 1993, he said, he was at his “nadir” financially. The jurors, none of whom appeared to be millionaires, appeared nonplussed by all his talk of “million-dollar loans,” “tax loss carry-forward,” and “bankruptcy.” They had agreed to sit on a murder jury and the defendant scarcely mentioned the murder.
After he explained his status as an executive with U.S. Bank, Brad frowned, remembering the period after Cheryl’s murder. “After Cheryl’s death, we were all very scared . . . fear that the children would be stolen—by Betty, or by Washington County. . . . I tried to stay available to the police in case they wanted to arrest me.” He said that he and his sons had endured a “tough” existence in Yakima that fall and winter. In late January he had finished building the barn, and “at Sara’s request, I moved back.”
Then Brad began to talk about Sara Gordon. Aware that she would be a chief witness against him, he also had to impugn her morals. He said a C.P.A. told them that Sara could use his tax loss carry-forward, but only if they were married. This, he claimed, was the main reason for the marriage. “We weren’t real compatible,” he confided to the jury. Again boasting of his accomplishments, he told the jury about the “dilapidated” building that he turned into the Broadway Bakery, and how he found the formula for Symptovir. “I’m interested in chemistry and math,” he said. “I was the guinea pig for Symptovir. I started the FDA process . . .”
From Brad’s viewpoint, virtually nothing in his life had been what it seemed to be. He was the fall guy, the patsy, who had always struggled against great odds. He said that he and Sara learned after marriage that the tax loss carry-forward could be used only against his income. The reasons for their marriage were gone. Sara was not fair with his children. Yes, he admitted, he had had an affair with Lynn Minero, his bakery manager, but he blamed that too on Sara, because she had moved out of their Dunthorpe home, deserting him.
It was Jim Ayers, the Oregon State Police investigator, who was basically responsible, Brad suggested, for Sara’s change of heart about testifying against him. Ayers had encouraged Sara to “recall” the bruise allegedly present on his arm after the murder. “Sara and Ayers broke into the house,” Brad said, “and took pots, pans, bedding, a computer, Cheryl’s wedding ring, a necklace that the boys had given Cheryl for Mother’s Day.”
In his rambling opening statement Brad pointed his finger at many enemies and spoke of his despair after Sara abandoned him. He and his sons had only an old VW bus that his aunt Trudy gave them. “We had to have a garage sale to live,” he said, hanging his head. “We made about five thousand dollars.”
Suddenly, Brad returned to Cheryl’s rampant promiscuity and added that she also disposed of assets in their bankruptcy. He seemed about to launch a still longer attack on his dead wife when Alexander warned him that he had far exceeded the time limits and legal parameters of opening statements. When Brad paid no attention to the admonition, Alexander interrupted the verbal torrent. “That’s enough, Mr. Cunningham. Please take your seat! Sit down!”
Judge Alexander explained to the jury that they had yet to hear one word of evidence. They were to go back “to ground zero. Start fresh. Wait until you hear testimony. Listen to what is acceptable. Disregard the vast majority of what you have heard.”
Brad wanted Mike Shinn banned from the courtroom. He might want to call him as a witness.
“I’m going to permit Mr. Shinn to stay,” Alexander said.
* * *
And so it began, the whole sequence of Cheryl Keeton’s life and death passing once again through a courtroom. Sometimes it would rain relentlessly outside the Washington County Courthouse, and sometimes the sky was clear blue. There were unseasonal snow storms, but inside the courtroom, no one knew. Participants and gallery alike were all caught in a window of time, a window that existed not in 1994 but in 1986, when the weather was warm and the sun had just set behind the Coast Range mountains.
Again, Randall Blighton told of finding Cheryl’s van crosswise on the Sunset Highway; again Tim Duffy, the paramedic, recalled trying to save Cheryl. Witnesses who once lived on 79th Street returned. Oregon State Police troopers, detectives, sergeants, lieutenants, supervisors. Cops. Medical examiners. Attorneys. Dr. Russell Sardo. Most of the gallery knew the witnesses by sight. It was akin to seeing the same movie for the fifth time, only this time the film would have an ending.
Cheryl’s family all testified, and Brad cross-examined Betty Troseth savagely. He had begun his character assassination of her during his opening statement, saying that she drank and caroused and that some of the men in her life had sexually abused Cheryl. He asked her again about the alleged abuse, and Betty looked not at him but through him as she said she never heard of it.
“Do you recall making the statement that you wish you’d had four retroactive abortions?” Brad lashed out.
“Mr. Cunningham, let’s not have any more outbursts like that,” Judge Alexander cut in, telling the jurors to disregard the remark.
Once again, Cheryl’s mother had to live through the last conversation she ever had with her oldest child, her pain achingly obvious.
It had not been a good morning for Brad. Karen Aaborg testified about the money he gave her to spirit his sons away, so far away that even he could not find them. Perhaps worse for Brad, she recalled the phone calls she had overheard between Brad and Cheryl, and his saying, “I’ll kill Cheryl. I’ll kill her.” “I remember it pretty vividly, because he said it with such passion,” she said. Karen also remembered the time in February of 1986 when Brad returned to Cheryl’s home after he had moved out. “He was trying to make it so miserable for Cheryl that she’d leave.”
After the jurors left for lunch, Alexander turned to Brad. “If you ever had a chance with this jury, you just ruined it,” he said quietly, referring to Brad’s attack on Betty Troseth. “You’re so convinced that you’re right that you’re not listening to the advice I suspect these lawyers [Hunt and Lyons] have given you.”
Any real lawyer knew the cardinal rule of defense attorneys: you do not attack the grieving family of the victim, and you do not portray the victim as a loose woman—no matter what she may have been in life. Brad had made devastating remarks about Cheryl, and several female jurors darted looks at him that were no longer unreadable.
There was a buzz in the courtroom when Scott Upham—not Brad—called Jess Cunningham as a witness that afternoon. Tall and handsome, Jess looked very much like his father—but with a gentler mien. Under Upham’s matter-of-fact questioning, Jess explained that he was a freshman in high school, and that he and his three brothers—Michael, Phillip, and Brent—all lived with Sara. He admitted that being in court scared him. He avoided looking at his father. In general, he demonstrated a remarkable memory. He remembered going from first to third grade in Riverdale School and living in Dunthorpe. He remembered the big house, the guest house, and the live-in baby-sitters. He remembered Tampico and the little house on the farm, going to school for a few months there, the moves to Houston, to Canada, to Uncle Herm’s.
But he could not recall Bridlemile School where he spent a few short weeks in first grade, or playing soccer then. He remembered living with his mother, and his father’s apartment when they were getting divorced.
“Your mother—” Upham began.
“Cheryl?”
“Do you remember the weekend she was killed?”
“Not the weekend—some things,” Jess said.
“Do you remember testifying before the grand jury?”
Before Jess could answer, Brad stood up to request a sidebar. He clearly wanted Jess off the stand. Alexander overruled his objections. Brad seemed to be afraid of what Jess was about to say.
Answering Upham’s questions, Jess said he remembered a long table in a room and a group of people who asked him questions three days after his mother’s death. But in 1994, he had only limited memory of the night his
mother died. He could remember seeing The Sword in the Stone and Rambo, and he associated those movies with the night his mother died, but details of that night had faded for him.
“After your mom was killed,” Upham asked, “where did you stay?”
“In the apartment,” Jess said, but he could not remember how long. It had to have been a terrible, numbing time for a little boy. “I remember a key tied on a shoelace,” Jess said. “I think it was flat and white. I tied it on the handle of the door [of the Toyota van] and to my lunch box. . . . Cheryl asked me to untie it and I did, but I left the key in the car, I think.” The shoelace was blue, and it and the key had ended up around Cheryl’s arm as she tried desperately to get away from her killer through the passenger door.
One thing that Jess remembered quite clearly was the sound of dishes being washed in the kitchen of his father’s apartment after Brad came home from wherever he had been that night. His father was washing something in the kitchen.
“No more questions.” Upham looked toward Brad.
Brad rose to cross-examine his son. He offered him a glass of water and, in a gentle, fatherly fashion, told him not to be nervous. Brad established that he had not seen Jess since early September—approximately two and a half months at that point in the trial. He asked Jess to recall “the fun things” they had done together, and to describe all the work he had done on the Dunthorpe house. But Brad did most of the talking, reminding Jess of all the good works they had done together, giving out clothes at Christmas. Then he launched into a very long documentary of his idyllic life with his sons, and of the hard times they survived. But he never explained why he himself had not just gone to work.
Upham let Brad ramble on—until he suddenly asked his son, “Did Jim Karr show you dirty pictures?” Upham’s objection was sustained. There was no foundation at all for that question.