by Ann Rule
The defense hit hard at the long delay in issuing the criminal indictment and asked what new evidence the State had. Most of all, they wanted to have any statements Cheryl had made just before her death banned from the criminal trial. They also sought Upham’s “work products” in preparation for the trial and during his investigation. Judge Bonebrake would not allow that and would delay his ruling on whether Cheryl’s statements and notes were “hearsay” or “excited utterances.” If Upham could get into the trial Cheryl’s statements made to her mother minutes before she died and the note she wrote to her brother, he would breathe easier.
There was new evidence. DNA analysis had come into its own since 1986, and OSP criminalist Julia Hinkley had retained the hairs found on Cheryl’s body. There was more witness testimony, too. But the most important testimony, if Judge Bonebrake would allow it, would be from a woman dead for eight years: the victim.
Brad’s next trial date, August 29, 1994, was postponed. Lyons was representing another murder defendant and Brad complained that neither of his attorneys was available for conferences with him when he felt it was necessary. His phone calls were not returned quickly enough. He abruptly fired J. Kevin Hunt and Tim Lyons and announced that he would represent himself.
Brad felt completely capable of handling his own defense. Even though he was not an attorney, he certainly was conversant with the law, with attorneys, with courtrooms, and with all manner of suits. He had had his own office at Vinson and Elkins’ law firm in Houston whenever he wanted it during the years his suit in Texas dragged on. But he had no experience with a criminal trial and had never gone to law school. And even if he had, the old saw that almost anyone can quote is, “He who defends himself has a fool for a client.” But nothing and no one could dissuade him from taking the reins of his own defense.
Once he had dispensed with his lawyers, Brad went after Judge Alan Bonebrake. He couldn’t legally fire a judge, but he did the next best thing. He sued him, claiming Bonebrake had violated his civil rights. Now that Bonebrake had personal legal matters pending with the defendant, he felt he could not serve as an impartial judge. He recused himself.
Judge Timothy Alexander replaced him. But if Bonebrake had been an implacable brick wall whom he detested, Brad would soon find that he had unwittingly placed himself in front of a judge who not only had an encyclopedic knowledge of the laws of Oregon but who had almost no patience with defendants’ histrionics and diversionary tactics. Alexander would carefully explain pitfalls to the defense, but once he had given his warning, he was not pleased to have to repeat it again and again . . . and again. Outside the courtroom, Tim Alexander had a great sense of humor. Inside, he had virtually none.
With twenty years’ experience as a trial lawyer, Scott Upham was confident that, facing even as savvy a layman as Brad Cunningham one-on-one, he could make mincemeat of him. But Upham shuddered at the thought of the circus Brad could create if he was allowed to represent himself. There is an order and a sequence to the law. Brad knew nothing of that. Even law school graduates rarely venture into criminal law until they have been in practice for five years or more. Brad’s defending himself was going to be a little like a first-year medical student performing open heart surgery.
Brad didn’t know the rules, he didn’t know the procedures, he didn’t know the language, he didn’t know the techniques, and he would probably turn what should be an orderly progression of witnesses, evidence, and arguments into utter chaos. Of all people concerned, Upham hoped that Brad could be dissuaded from being a one-man show, that he would be opposing a real attorney and not a man who had demonstrated throughout his life that he had to be in charge.
But Brad was adamant that he would defend himself, although he grudgingly agreed to allow the State of Oregon to retain Hunt and Lyons as his legal advisors, if not as his attorneys. He himself would select the jury, question witnesses, and present his own arguments. He would be the voice, but he would have Lyons and Hunt next to him to consult on issues where he had ventured out of his depth.
The trial that had been first scheduled for January of 1994 was set over from August to October 24 and then to October 26. Main Street in Hillsboro was decorated for Halloween when the trial began at last—nine months after it was supposed to. Estimates were that it would last two weeks. When it finally ended, the jack-o’-lanterns were long since gone, snow covered the Washington County Courthouse grounds, and Main Street was decorated for Christmas.
PART 7
The Criminal Trial
58
Brad’s initial bail hearing fourteen months before had been held in the old section of the Washington County Courthouse. On the fourth floor of the newer addition, two elevators open onto a corridor with a huge woven wall hanging done in peach, orange, and blue tones that greets everyone who emerges with the motto “Wherever Law Ends, Tyranny Begins”—John Locke. Every spectator heading for the two courtrooms on the fourth floor has to pass through highly sensitive metal detectors. Nothing metal gets through. No pocketknives. No hat pins. No nail files. No “church keys.” No jokes.
Judge Alexander’s courtroom had only three rows of chairs for the gallery, and when Brad’s trial began, the back row was almost entirely filled with Cheryl’s family. They had been through this too many times before, but this was the trial that might finally give them some closure. It would not be easy for them, but they would commute every day of the trial from Longview in the hours before dawn and after sunset: Betty and Marv Troseth, Susan and Dave Keegan, Bob McNannay, Jim Karr, and Cheryl’s cousin Katannah King. Her half sisters and their husbands flew up from California to be present: Debi and Billy Bowen and Kim and Bill Roberts.
So many people had been involved with Cheryl’s life—and with her death. Mike Shinn would often be in the courtroom, as would Sara’s friend and protector Jack Kincaid (a presence that particularly rankled Brad). There would always be a line at the metal detectors and, except for the media and family, seating would be scarce. Portland network-affiliate cameramen, radio and television field reporters, an occasional syndicated tabloid television producer from Los Angeles, even a reporter from the London Guardian would wander in and out. The constant media presences, however, were Fiona Ortiz and Robin Franzen from the Oregonian, Laurie Smith from the Daily News in Longview, Eric Apalategui from the Hillsboro Angus, and this author and her assistant.
Every trial takes on a life of its own, and this one more than any other would have a strangeness and, indeed, the chaotic propulsion that Upham had feared. There was always the sense that, had it not been for Judge Alexander, it might hurtle off the track at any moment. No one could ever really know what the defendant would do next.
As the trial got under way, Upham was as low-key and inscrutable as his opponent was volatile. Brad was once again dressed in a neat dark suit. He had a fresh haircut, combed so that it mostly hid an encroaching bald spot at the crown of his very large head. His handcuffs were always removed outside the courtroom so the jury would not see them. But he wore a brace on his left leg, a bulky anti-escape device that extended from his ankle to well above his knee. Brad had asked that he always be in place at the lectern from which he spoke to the jurors before they came in, so they would not know about the brace. Judge Alexander acceded to that request.
Next, Brad said he needed glasses; he couldn’t read all his files, he had headaches, and his eyes blurred. Sighing, Judge Alexander acceded to that request too, but wondered why Brad’s attorneys—or rather his legal advisors—hadn’t seen to this a long time ago. (Over the weekend, Brad would be taken to the Oregon Health Sciences facilities to get glasses. Because he was escorted there in his orange jail “scrubs,” he complained when the trial resumed that a potential juror might have seen him there.)
It was startling to hear Brad speak. He had a rather high, almost boyish voice. He did not sound in the least violent. He smiled pleasantly when he said yet again, “Motion to continue . . .”
“Denied.”
Brad glanced around the courtroom and his eyes fell on Cheryl’s family in the back row. He asked that potential witnesses be barred from the courtroom.
“We’re not going to play that game,” Alexander said calmly. In Oregon, survivors of crime victims have the right by law to be present in the courtroom, whether they are to be witnesses or not.
It was time to pick a jury. During voir dire, the opposing attorneys could rather informally ask questions of those in the jury pool when they filed into the jury box three at a time. Brad had difficulty asking simple questions and continually lapsed into conversation with potential jurors—almost as if he felt he had to convince them now of his innocence. When Judge Alexander chastised him, Brad smiled and said, “I’ve never done this before.”
“This is very important to me; it’s my life” was another of Brad’s frequent comments. As, indeed, it was. He was not facing the death penalty, but the hedonistic freedom he had enjoyed his whole life would end if he lost this most important courtroom battle. Brad’s arguments, however, weren’t what Judge Alexander wanted to hear on voir dire. “Mr. Cunningham, I haven’t heard a question yet,” he said. “If you don’t ask one, I’ll move on to Mr. Upham.”
Brad was a quick study. He asked the potential jurors questions about their jobs, background, family, children, possible divorces, custody battles. Again and again he asked, “Do you wonder why I’m defending myself? Does it bother you?”
They all wondered. It bothered none of them.
When Upham asked a question of a potential juror that drew a meaningful response—such as “Have you heard of winning at all costs?”—Brad appropriated that question for the next trio of possible jurors. “Does it concern you that someone is indigent?” he asked one juror. Upham objected and Alexander sustained.
It became quickly apparent that Brad wanted to begin trying his case with jurors who hadn’t even been chosen yet. His voir dire questions centered around “crooked cops,” “frame-ups,” the plight of the “indigent” defendant, the “loose morals” of the victim, and the length of time between the murder and his trial.
To his credit, Judge Alexander would spend much of the trial giving short lectures to Brad on law. At this point, he explained what voir dire of jurors was supposed to be, adding, “Mr. Cunningham, it takes years to understand this sophisticated process.” Alexander likened Brad to a first-year law student and reminded him to ask questions that elicited only the facts of the jurors’ lives. Brad had taken two hours on three jurors. “You have ten minutes to finish, Mr. Cunningham,” Alexander warned.
The prospective jurors often seemed intimidated by Brad. He asked them to define “affidavit” and “deposition” and other legal terms. Most of them could not. And when they could not answer or the answer was not what he wanted to hear, Brad was unfailingly calm and smiled, saying softly, “Okay.” He asked about “vendettas” and “people who lie to fit the facts” and “entrepreneurs” and “poisoning the well” and “burden of proof.” But his most revealing questions were about what a potential juror might think of him. “How about someone who blames someone else for all their problems?” he asked one juror. And another, “How about women who collect men as prizes?”
No way was this trial going to be finished in two weeks. With Brad’s tedious questioning of prospective jurors, it took until ten minutes after two on November 8, 1994, for both sides to agree on twelve jurors. Although two alternates would be chosen soon after, thirteen days had passed and opening arguments were still ahead.
Upham was sanguine. His theory on juries was that almost any combination of personalities would make a functional jury. He was satisfied with this one, balanced equally between males and females, youth and age, professional and blue collar. He had lost some he would have liked—particularly a young paramedic, who he knew would never survive the defense’s challenges. All and all, it was a good jury.
But Upham had much more to be confident about. In pre-trial rulings, he had won the most important witness he could possibly have: Cheryl. Her last note to Jim Karr was in. Her last call to her mother was in. The jury would hear about those final, hopeless cries for help. Judge Alexander ruled that they were not “hearsay” but rather akin to “deathbed statements.”
Cheryl Keeton, one of the most brilliant young attorneys in the Northwest, dead too soon, would “testify” in this trial. And if Brad was both the defendant and the defense attorney, then Cheryl would be both the victim and the star witness.
On Monday afternoon, November 14, Judge Alexander’s courtroom was packed so tightly that the sacrosanct first row of seats—heretofore kept empty of spectators—was grudgingly opened to the press. Reporters were allowed to sit in the first row except for the four seats directly behind the defense table. They all knew why: the premise was that Brad might try to escape and use a reporter seated directly behind him as a hostage—a soap opera scenario, perhaps, but one policy that all courtrooms adhere to. For the same reason, murder defendants never have wheels on their chairs; it would be too easy to spin around and sprint for a door or window.
Brad was certainly no ordinary defendant. He wore his two hats proudly. There were television cameras aimed directly at him, and he almost basked in their strobe lights. He was no longer sleeping in a jail cell. The Washington County jail had provided him with a three-room suite, part of the infirmary, all to himself. He was now housed alone in part so he could study his files late, and in part because he was the least popular prisoner in the jail. He had a television, but he complained that he had no fax. He also complained that his lights were not bright enough.
In addition to his suit against his last judge, Brad was suing the jail. He was as litigious a defendant as most reporters had ever seen—and the most quarrelsome. As the trial began, he objected to Upham’s exhibits, maps, and photos. He moved for a mistrial because Judge Alexander walked out of the courtroom before Brad had presented his motion asking to be present at the jury’s on-site viewing of the crime scene earlier that morning.
“We ruled on that weeks ago, Mr. Cunningham,” Alexander said implacably.
Had Brad realized yet that he had forced one judge to recuse himself only to place himself squarely in the eye of a man as obdurate as he was himself? Apparently not. And even if he had the legal lingo down, he didn’t understand much more criminal law than any neophyte. He said that Alexander’s rulings were “arbitrary and capricious.” He moved again for a mistrial. He didn’t know that he had to submit such requests in writing. Upham did; Brad didn’t.
“We won’t spend time retreading old ground,” Alexander said sternly. “Don’t waste my time.”
Brad objected to the microphone on his table. It had no “kill” button.
“It’s a public courtroom, Mr. Cunningham.”
Brad had still more complaints. He said that Scott Upham had lied about how long the trial would last, and that Upham had deliberately kept “good jurors” out by saying that the trial would take so long.
“Sit down, Mr. Cunningham,” Judge Alexander said. Brad remained standing. “Sit down!”
No one had ever really told Brad what to do. Alexander went further. If there were any more delays, any more “games,” he would throw Brad out of the courtroom.
“Bring the jury in.”
If ever two men were opposites, it was Scott Upham and Brad Cunningham. Upham was low-key, quietly confident, almost businesslike in his refusal to become emotional in the courtroom. He began his opening arguments at 1:47 P.M. He explained to the jury that they would have evidence to consider in two forms: the sworn testimony of witnesses, and exhibits. He encouraged them to take notes, and to remember that his own opening statement was not evidence. “What Mr. Cunningham says is not evidence.”
Upham detailed the charges against Brad. He stood accused of intentionally causing the death of another human being. The question the jurors must decide was quite simple: “Did Bradly Morris Cunningham bludgeon Cheryl Keeton to death on Sept
ember twenty-one, 1986?” Then, in his steady deep voice, Upham told the story—the tragedy, really, of Cheryl’s and Brad’s lives. All the marriages. All the divorces. The births of their children. Cheryl’s steadfast emotional and financial support. Brad’s million-dollar projects and the collapse of his financial empire. The faltering of their marriage.
For reporters and witnesses who had committed to memory the horrific end of that marriage, there were no surprises, only admiration for Upham’s precise memory of every detail, every date, all the diminishing highs of Cheryl’s life and the accelerating lows. For months Upham had sat up late, reviewing literally a roomful of files until he probably knew Cheryl Keeton’s life better than he recalled events and dates of his own life.
What were the jurors thinking? Had they ever heard a story of stalking and terror like this one—outside of a movie theater? No one could tell. All jurors quickly develop poker faces. They stare at the prosecution and defense alike without expression. They look at photographs that show horrors they could never have imagined and pass them on down the line. Only courtroom amateurs say they know what jurors are thinking. No one knows.
Rarely do opposing sides object during opening statements, but Brad did. With Tim Lyons and Kevin Hunt on either side of him to try to keep him from popping up, he managed to keep silent until Upham began to describe the Saturday before Cheryl died, when she had gone to her son Jess’s soccer game, violating, Brad felt, his custodial rights. “At the soccer game,” Upham said, “Brad grabbed Michael and Phillip and walked around the field—away from Cheryl. Cheryl told Nancy Davis, an old sorority friend, that Brad had threatened her if she came—”
