by Ann Rule
Shinn began the next morning with a description of Brad’s character, calling him a tyrant and a coward. He commented on Brad’s collection of guns, his arsenal, bullet-proof vests, his hideout in the woods, and his police car. “Where’s his military record?” he asked the jury. “When this country needed men who were really men—that had to use guns—where was Mr. Cunningham? He’s my age. I haven’t heard about any disabilities. Why didn’t he go to Vietnam or to the desert? Mr. Cunningham was trying to get rich. He was collecting automobiles. Mercedes-Benzes. Stables of them. . . .”
Shinn pointed out a pattern in Brad’s behavior that was so clearly predictable. “Mr. Cunningham uses vehicles against women. . . . Stealing cars. Hiding keys from his wives. . . . When Lauren Cunningham was delivering her baby in the hospital, he calls her up, ‘I’ve just repossessed your car.’” It was true. Brad collected exotic cars as symbols of his masculinity. He also used them to get even with the women in his life. He had killed Cheryl in her car.
Step by step, Shinn reminded the jury of the many “bizarre” actions that witnesses who knew Brad had testified to. Using charts, photos, maps, and the videotape of the reenactment of the crime, he once more called up the last moments of Cheryl’s life. He sounded angry. He was angry. It would have been impossible to spend so much time immersed in her life and tragic death without coming away with a compelling need for justice.
Brad Cunningham was not there in that courtroom on Friday, May 16, 1991. But his image was flayed, pinned to the wall, and laid out for the jurors to study. He was a coward, a con man, a sadist, a monstrous father, a faithless husband, a killer.
The jury retired to deliberate. Mike Shinn had not suggested to them a specific amount of damages. He asked only for a verdict that would serve as a memorial to Cheryl “so that her life didn’t end in total vain. You’re the only people who may ever have the power and the authority to bring some kind of deliverance to the victims—her little boys. With her death, half of them died too—maybe more. Bring back a verdict that reflects the conscience of you people . . . a verdict that will follow Mr. Cunningham around the rest of his life, one that will reflect his ego and that he will take notice of.”
The jury would decide whether to award money for Cheryl’s wrongful death, the pain and suffering of her children, and their loss of their mother, as well as punitive and exemplary damages.
Deliberations took a little more than five hours, and even Shinn was shocked at their decision. They had agreed with all of his arguments. They believed that Brad Cunningham had indeed beaten Cheryl Keeton to death. But they went further than he could have imagined. Shinn had privately been hoping that they might return with a judgment of $15 million. He wasn’t naive enough to think that the money would ever actually be paid. It would likely be a Pyrrhic victory. Brad would undoubtedly claim poverty.
The jury had added in losses that even Shinn hadn’t thought of. There should be money for Jess, Michael, and Phillip to go to college. There should be money for counseling. They announced that they had awarded Cheryl Keeton’s estate $81.7 million. It was one of the largest civil judgments—if not the largest—in Oregon history.
Interestingly for a man so hard to find, television camera crews had no difficulty locating Brad in Houston. Sitting on a couch in his tastefully appointed apartment with his sons and Dana standing nearby, he said that no one knew the pain he had suffered over Cheryl’s death. “I miss her—terribly. I had nothing to do with her death, and yet my whole life has been ripped apart as if I did,” he said with a slight catch in his voice. He refused to discuss any evidence or suspicions that linked him to Cheryl’s murder, but he said, “Yeah, I would like to know what happened to her. . . .
“This has been a very tough time for my family. And it’s very difficult on me. I’m not the same person I was a year ago, or two years ago. Just a lot of unnecessary pressures and stresses on the children and I—reading what’s been printed in the newspaper, the people not hearing any other side of the story, and us being unable to give that other side of the story. . . .
“I have no money to fight this. The boys and I live on Social Security. We have very little money. We haven’t had hot water in our house for some time. We haven’t paid our rent—we’re not being evicted, but we’re leaving.” How could he be expected to pay Cheryl’s estate $82 million?
Jess faced the cameras. “It makes me kind of sad because he had to go through that,” he said. “He’s my dad. I love him. He couldn’t have done what they said he did.” And then the cameras followed Brad, Dana, and the boys as they stepped into a taxi. Dana looked like a movie star in her clinging blue dress and dark glasses, and Brad smiled benevolently at his sons.
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When the trial was over, several jurors said that they were going to write letters to Governor Barbara Roberts and Attorney General Dave Frohnmayer to urge them to seek a criminal indictment against Brad Cunningham. “I think everyone on the jury felt he was responsible,” said juror William Tyrrel. Charlene Fort, the foreman, said, “I think he should be tried in a criminal hearing.”
Brad’s aunt Trudy Dreesen denounced the trial and questioned the motives of everyone who had testified against her nephew. “All this that’s being said about him is a landslide of lies and network of half-truths and twisted things,” she said. She would die believing that Brad was a sad young widower who longed only to care for his little boys.
Washington County District Attorney Scott Upham declined comment on the verdict. “The Keeton case is open and it has always been open,” he said. “It is being actively investigated by the Oregon State Police.” Pressed, he explained the concept of double jeopardy and the conflict his office had faced since 1986. The civil verdict put the D.A.’s office in an uncomfortably hot spotlight. It had been between a rock and a hard place for almost five years now, agonizing over which way to go to see that permanent justice was done in this case. But it had yet to seek a criminal prosecution against Brad. Mike Shinn had done a masterful job of proving Brad civilly responsible for Cheryl’s death. He had given the jurors the “clear and convincing” evidence required for a wrongful death suit. Still, most people watching television and reading newspapers didn’t have the faintest notion of the difference between winning a civil case and winning a criminal conviction.
Shinn now had tossed a gauntlet in Scott Upham’s direction. And it wasn’t a subtle gauntlet. In his final arguments, he had said in plain language that the justice system in Washington County “has been either too impotent or too cowardly to deal with it. The legal system has utterly failed with this individual.”
In this case, justice delayed was not justice denied. It was, however, justice delayed once more. Upham had never given up on his quest to gather enough evidence to convict Brad of murder in a criminal court. In a sense, Mike Shinn’s civil victory heartened him. But in another sense, it was as if someone had just lit a red-hot fire underneath him.
Shinn had had three distinct advantages in the civil trial: (1) He was unopposed; (2) He had had only to win with the preponderance of evidence, while Upham would have to prove that Brad was guilty beyond a reasonable doubt; and (3) Many witnesses called in the civil trial would be considered “hearsay” witnesses or witnesses to “prior bad acts” of the defendant, and never would be allowed on the witness stand in a criminal trial. As Upham explained to Oregonian reporter Joan Laatz, “Those rules are put in place to demand that prosecutors seek justice. Suspicion, feeling, innuendo, and motive do not amount to evidence.” And a man cannot be convicted of murder simply because he is a mean S.O.B. Sometimes “similar transactions”—similar crimes from a defendant’s past—can be admitted into a criminal trial, but their admission has often opened the door to appeals.
Upham and his chief investigator, Jim Carr (not Cheryl’s brother whose name is spelled “Karr”), and Oregon State Police Detective Mike McKernan finally decided to pursue a criminal indictment against Brad. If they failed, they failed. If they g
ot a criminal indictment and Brad was acquitted, he would go free. It was a risk Upham was prepared to take.
For Mike Shinn, it was over—or as close to over as it could be for anyone who had ever jousted with Brad Cunningham. Gratefully, he vacated his latest hotel and returned to his houseboat. He was sick of hotel food, sick of city noise, and he wanted to be back in his floating home in the wild preserve. He had no reason to feel any safer; in fact, he had reason to feel less safe. Brad was still free. But the civil trial was finished; two years of intense investigation had paid off. It was time to move on.
Scott Upham was an Oregon native who had attended Portland State University and got his law degree from the University of Oregon. With his thick, rapidly graying hair and a luxuriant mustache, glasses, and tweed jackets, he looked like a college professor. He was serving his fifth term as D.A. of Washington County. Hillsboro is basically a small town, and Upham was so approachable to his constituency that his name was listed in the phone book. It was not unusual for his evenings to be interrupted by someone who had a quarrel with the judicial system of Washington County. “They have the right to complain,” Upham said. “It doesn’t happen very often, and it helps me keep in touch.”
In his mid-forties, Upham jogged, worked out, and played golf, soccer, and softball. He liked a beer after work and, most of all, a good cigar. He was a familiar and popular figure around Washington County. He was also an excellent courtroom strategist. He knew his cases inside out, and he was rarely surprised by anything the defense might throw at him. He was a man with a wicked, deadpan sense of humor. But by mid-1991, he had lost all sense of humor about Brad Cunningham. Gathering enough evidence to return to a grand jury and secure a murder indictment, and then trying the case in court, would prove to be the toughest challenge of Upham’s career. If any man knew the ins and outs of the legal system, it was Brad.
There is a special kind of stress inherent in preparing for a criminal trial—any criminal trial—and when it is a homicide case, the stress grows exponentially. Upham and his wife Mary Ann had three children—two daughters and a son. They were planning to build a new house. But with the Cunningham case, Scott and Mary Ann Upham would find that they scarcely saw each other often enough to draw up plans for a chicken coop, much less a house. Before Upham was finished with the probe into Brad’s past—both criminal and personal—his office and adjoining rooms would spill over with thirty thick three-ring binders and twenty-four cardboard boxes full of detailed information.
Had Cheryl’s body been found a few hundred feet to the east, her murder would have occurred in Multnomah County, the most populated county in Oregon—with, naturally, a much bigger D.A.’s staff. Indeed, the Toyota van was discovered so close to the Washington/Multnomah county line that Upham could still have chosen to decline the case and turn it over to Multnomah County. He just couldn’t do that. As she did everyone else, Cheryl Keeton haunted him.
Brad simply ignored the $81.7 million judgment against him in the wrongful death suit in Portland. It was as if it had never happened. He was concerned only with his multimillion-dollar lawsuit against the Houston contractors. He and Dana and his sons were living in Houston again, and living well. He had lost, but in Brad’s mind he had won.
Sara had not seen her sons for more than a year, and she was thrilled—if cautious—when she received a letter from Phillip on September 6, 1991. She recognized Brad’s distinctive printing on the green-and-white envelope and saw it was from Vinson and Elkins in Houston. Sara immediately wrote to Phillip, enclosing a hundred-dollar check for his birthday, and sent it by certified mail. “I was so happy to get your letter. I love you, Phillip. How are Jess and Michael? Tell them I miss them too and I love you all very much. . . .”
Sara knew Brad could not resist cashing her check. He would have to show identification, and she hoped she might get the address where the boys were living. She had seen them all on the television news when Brad proclaimed his innocence and pleaded poverty. She had watched, horrified, as Jess faced the cameras and mouthed the words she knew Brad had programmed into his brain—just as he dictated their letters to her.
When her plan to find out his address worked and Sara tried to learn more about the boys, Brad was furious. Jack Kincaid was trying to help her see the boys, and Brad vented his rage on him, too. Kincaid’s opinion of Brad was, if anything, lower than Brad’s of him. Kincaid never called Brad by name. He referred to him simply as “Killer.”
To intimidate Sara, Brad resorted to a familiar tactic. He sent a fax to Providence Hospital full of venom and ugly aspersions on her, hoping it would circulate around the hospital.
Sara . . .
Sara, you suffer from both physical and emotional afflictions . . . demonstrated by your cruel toying with the children’s minds and emotions. . . . You also have symptoms of the Burke Syndrome, . . . wherein the sufferer wrongly punishes the minor children of an individual they do not like.
I know so well of the hatred you harbor for me. God knows how you have inaptly [sic] demonstrated it in your failed collaboration with Michael Shinn. . . . How you can fabricate and lie under oath amazes me. . . . Your outwardly attractive appearance and seemingly sweet facade hides the conniving control freak that you really are. . . .
In the fax, Brad described Sara as a manipulator and a career wrecker who enjoyed having her friends and associates feel sorry for her and who deliberately contrived stressful situations. He also named names of physicians at Providence and said that Sara had started rumors about them. His loathing and disdain for Sara oozed from every line. He knew how to hurt her, and that was to chip away at her image as a mother and her love for the boys.
You have a duty to pay child support for Jess, Michael and Phillip. . . . Yes, they have suffered, and YES all I want from you is money. I only wish I could give the boys a mother. . . . You have never learned the art of love and caring necessary to be a parent. . . .
Wise up, Sara. . . . Quit trying to punish me for Lynn . . . I never got a chance to tell you this but . . . you are not good at the heterosexual thing—better watch out for Jack before he finds his ‘Lynn.’
. . . Get a life, pay child support. . . . My only goal in life is to raise my boys to be healthy, inspired, adults. . . . Please, Sara, stay healthy, work hard, make lots of money and pay all your back taxes . . . so I can . . . subpoena your ass when it is necessary.
. . . I have a good life with the boys. . . . I am also getting incredible sex—you should be so lucky if she would only give you lessons.
The fax was the antithesis of the love letter Brad had once written to Sara begging her to come back to him. Now he hid nothing. As it so often did, his fury ate like acid on the pages of his handiwork.
. . . I have ventilated all I want to.
Thanks, I feel better.
Brad Cunningham c/o Family in Lynnwood
Fortunately, the scurrilous fax was tossed unceremoniously into the wastebaskets of hospital employees who were all too familiar with Sara’s problems with her ex-husband. Brad’s letter only served as further proof of his genius for projection. Most of the characteristics he attributed to Sara were his own. And the “newly discovered” Burke Syndrome was, of course, a slap at John Burke, the trustee of Cheryl’s estate.
By the spring of 1992, Brad felt he had done as much as he could on his Texas lawsuit and he told Dana that they would be moving north. Although she had never been that fond of Houston and its humid air that was almost too thick to breathe, Dana had become somebody in that city. She was “Angel,” the most popular dancer at the Men’s Club, a kind of celebrity. And now she had to quit her job and trail after Brad.
Still, the pattern of their relationship had long since been established. When Brad and the boys pulled out of Houston, Dana was with them. They moved first to Mill Creek, an affluent area north of Seattle, where Brad rented a quarter-million-dollar house. Dana had to sign the lease. Brad told her he would never have made it past a credit check. His aunt a
nd uncle, Herm and Trudy Dreesen, lived nearby, virtually the last of Brad’s relatives to stay in contact with him.
Dana’s world with Brad had become akin to living in a velvet and silky prison, and now she was looking for a way out. Before, there had been times when things were bad, but somehow the good times balanced everything out. That was no longer true. “I couldn’t be with Brad any longer,” Dana said later. “Things were getting too dangerous—too weird. There are things that I’m still afraid to talk about.”
For one thing, Brad was carrying a gun. And he was building up a small arsenal. He was obsessed with guns, with assault weapons, and with paraphernalia like handcuffs and restraining devices. Dana was back in the Northwest, back where she had friends and family. She wanted desperately to leave Brad. It was not that easy. “He wouldn’t let me go,” she remembered. “He said, ‘Just be with me. Just live with me, and we can have an open relationship. Just live with me and I’ll take care of you. . . .’” What Brad meant by an open relationship was that Dana could date other men, but she could not stay out all night with them. “If I came home the next day, I got in trouble.”
Why would she even consider an arrangement like that? Dana had been under Brad’s thumb for two years. She had lived his life in his world. She had dressed the way he wanted her to dress; she had even become an exotic dancer because it was what Brad wanted. He had convinced her that she was too uneducated, too dumb, to ever make it on her own. And yet, within her, there still beat the most primitive need that any human has: the need for freedom. Dana didn’t have the strength to leave Brad completely. She was afraid of him, and she was afraid that she couldn’t make it on her own. She took the only bit of freedom he allowed her—he let her date other men. Even so, she sometimes had the feeling that he was nearby with a camcorder, filming her with other men. It wasn’t anything she could ever prove. It was just a feeling that made the back of her neck crawl.
