Read Dead by Sunset: Perfect Husband, Perfect Killer? Online
Authors: Ann Rule
Tags: #General, #Murder, #Social Science, #True Crime, #Criminology
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 attorneysþor rather his
legal advisorsþhadn'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 jurorsþalmost 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, 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
responseþsuch as "Have you heard of winning at all costs?"þ 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 þparticularly 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 seatsþheretofore
kept empty of spectatorsþwas 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
hostageþa 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
seenþand 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.
l 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